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Journal of Malaysian and Comparative Law

 

Issue

Article Title
Abstract / Introduction

Page

(2018) 45 (2) JMCL

Editorial Note

0

 

Issues pertaining to constitutionalism figure prominently in this issue of the JMCL. Conversations on the Federal Constitution and public law continues to rumble as the ‘New Malaysia’ grapples with the rule of law and the need to return to the basic tenets of its basic document.

In the Fifth Raja Aziz Addruse Memorial Lecture Professor Shad Saleem Faruqi historically examines the constitutional and legal safeguards as well as critical cases which have had an impact on Judicial independence and impartiality. Noting that the ‘judicial winter’ which descended in 1988 had not yet fully thawed, Professor Shad highlights several recent positive developments which seem to point towards strengthening constitutionalism, such as the revival of the basic structure doctrine and a more prismatic interpretation of the Constitution by the courts. These, coupled with strong developments in Administrative law augur well for Public law and its future, in Malaysia.

Low Hong Ping follows this up with an interesting and important analysis of the ‘soul’ of the Constitution or its basic identity through an examination of provisions pertaining to how easy or difficult it would be to amend provisions of a constitution. While noting that finally Malaysia has unequivocally adopted the basic structure doctrine, the author argues that this could be the first step towards realising the identity of the Malaysian Constitution, that is, through its ‘core’ or basic structure.
Khairul Anwar and Saifullah Qamar meanwhile analysed the development of the right to privacy in Malaysia through the Court of Appeal decision in Muhamad Juzaili bin Mohd Khamis v State Government of Negeri Sembilan. The authors argue that the Court of Appeal decision adopted and cemented a constitutional right to privacy although the decision was reversed by the Federal Court on appeal. Nevertheless, the authors argued for the continued use (given its relevance) of the Court of Appeal decision and suggested that the Federal Court could have been in error in reaching its decision. The case concerned the right of the appellants, Muslim men, who were diagnosed with Gender Identity Disorder, to wear women’s attire, an issue which had been settled in India by at least two Supreme Court cases, one of which was a point of reference for the Court of Appeal decision.

Dr. Sharifah Suhanah Syed Ahmad
Executive Editor

 

(2018) 45 (2) JMCL

Evaluating the Relevancy of the Directors’ Duty to Exercise Powers for a Proper Purpose: Should Sri Lanka Recognise it in Statutory Form?

1

 

Abstract:
A comparison of the directors’ duties in the Companies Act No 07 of 2007 of Sri Lanka (SLCA 2007) with the Companies Acts of the selected comparative jurisdictions, the United Kingdom and New Zealand demonstrates that Sri Lankan statute has recognised the key fiduciary duties of directors in statutory form, similar to these comparative jurisdictions, except for the proper purpose rule that dictates directors must exercise their powers for a proper purpose. In this context, an inevitable question arises, whether the proper purpose rule needs to be statutorily recognised in Sri Lanka as part of a directors’ duty, one that is found in similar corporate legislations in other jurisdictions. It is this concern that the article addresses. It critically analyses the scholarly and judicial debate surrounding the duty of directors to exercise powers for a proper purpose. Firstly, this article points out that in many cases, the standard of good faith is applied to ascertain the propriety of purpose. It is argued that in such cases, the duty of proper purpose is adding nothing more to the duty of good faith. Secondly, the article examines the alternative judicial approach of considering the two as separate duties and analyses its weaknesses focusing on the tests employed in such context. Further, the articleconsiders the opinion that strict scrutiny of directors’ decision-making through the proper purpose rule reflects the necessity to protect shareholders from abuse of power that existed prior to the introduction of statutory remedies for shareholders’ protection. It is demonstrated that the proper purpose rule appears to be redundant in the presence of the cumulative effect of the duty of good faith to act in the best interest of the company, duty to follow legislation and the corporate constitutions and also the discretionary remedies of the court to protect shareholders. This article concludes that recognising the proper purpose rule in statutory form in Sri Lanka is unnecessary and suggests that the suitable standard to apply for keeping the discretionary powers of corporate directors in check is the standard of good faith.

Keywords: Directors Duties, Proper Purpose Rule, Good Faith, Shareholders.

 

(2018) 45 (2) JMCL

30th Anniversary of the 1988 Judicial Crisis: Lessons about the Importance of Judicial Independence and Impartiality

25

 

Importance of Judicial Independence.
The judiciary occupies a central place in Malaysia’s democratic, constitutional set-up. The Constitution envisages a rich variety of functions for the courts to preserve the rule of law and constitutionalism in the country.
Judges are under oath to preserve, protect and defend the Constitution.1 It is their duty to enforce the supremacy of the Constitution against all pre-independence and postindependence legislation.2 They have an inherent power to employ the ‘first principles of administrative law’ to keep the government in check.3
 The judiciary supplies the balance wheel of federalism.4 It has a duty to safeguard human rights by balancing the might of the State with the rights of the citizens. Judges interpret the Constitution to harmonise conflicting provisions, to make explicit what is implicit in the law and to fill the gaps found in legislation. They provide remedies whenever rights are infringed.

 

(2018) 45 (2) JMCL

The Doctrine of Unconstitutional Constitutional Amendments in Malaysia: In Search of our Constitutional Identity

53

 

Introduction.
This short note explores the doctrine of unconstitutional constitutional amendments in Malaysia. The author argues that substantively, there are explicit and implicit limitations on the power of Parliament to amend the Federal Constitution (Constitution). The explicit limits are found in the provisions of the Constitution. The implicit limits are anchored by the basic structure doctrine. For the latter, the author will demonstrate that the structure of the amendment rules in the Constitution, the process by which the Constitution is amended, partially informs on what is the basic structure of the Constitution. Nonetheless, the Malaysian jurisprudence on the basic structure doctrine still lacks a ‘soul’ – the constitutional identity of Malaysia.

 

(2018) 45 (2) JMCL

The Court of Appeal’s Decision in Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors – A Real Breakthrough in the Law

71

 

Introduction.
Islamic enforcement officers were conducting their routine ‘patrols’ and caught two women attempting to engage in sexual activity in a car. These women, respectively aged 32 and 22, pleaded guilty to attempted musahaqah before the Terengganu Syariah High Court. They were convicted and sentenced to six lashes each and fined RM3300 (approximately USD792) or four months’ imprisonment in default. The caning was carried out on 3 September 2018 by the authorities in the presence of the public comprising various sectors of society. It is said that at least 100 people witnessed it.

 

(2018) 45 (1) JMCL

Malaysia: A Silent Voice in World Trade Organization Dispute Settlement – Some Legal Considerations for Future Involvement in Renewable Energy Disputes

1

 

Abstract:
In the World Trade Organization (WTO), disputes relevant to the market for equipments producing renewable energy such as solar panels, are increasing. Such cases can be important for Malaysia as one of the world’s leading producers of solar panels. The article examines Malaysia’s engagement in WTO disputes from a legal perspective and finds that Malaysia is only engaged to a limited extent in WTO disputes. This limitation can be a problem as WTO law is developed through the WTO Dispute Settlement System and the suggests claims that both disputing parties and third parties can have an impact on that development. In order to help shape WTO law related to renewable energy in a preferred direction, Malaysia should become more involved in WTO dispute settlement.

Keywords: World Trade Organization, Dispute Settlement, Malaysia, Renewable
Energy

 

(2018) 45 (1) JMCL

Rule of Law for Whom? Human Security Perspectives on the Emerging Asian Market for SDGs: Focused on a Cambodian Case Study

27

 

Abstract:
This article examines law reform assistance for establishing rule of law in Asia by case study. In Asian countries, land grab is commonly observed as the regional market economy develops. In Cambodia, local and international NGOs jointly submitted a complaint against ANZ Bank, at the Australian National Contact Point (NCP). The NCP, established under the Organisation for Economic Cooperation and Development (OECD) is the body responsible for furthering the OECD Guidelines for Multinational Enterprise. In this case, the ANZ Bank had allegedly funded a local land grab company for a sugar cane plantation by means of an economic land concession, under the local Land Law, passed in 2001. The Asian Development Bank (ADB) assisted in drafting this law. Subsequently, relying on the 2011 UN Guiding Principles on Business and Human Rights, local farmers who lost their land, have access to remedy, however the most vulnerable persons lost their jobs at the plantation without any compensation. Without the human security perspectives from the local context, transnational soft law like the UN Guiding Principles and the OECD Guidelines could harm local vulnerable peoples. As a result, these principles and guidelines are potentially ineffective for protecting and respecting human rights as well as promoting access to justice for them. How then can Goal 16 of the UN Sustainable Development Goals (SDGs) be achieved, in the emerging Asian market?

Keywords: Rule of Law and Development, Human Security, Business and Human Rights, Cambodia, Land Grab

 

(2018) 45 (1) JMCL

Are All Constitutional Rules Created Equal? Substantive Hierarchy in Constitutions in Theory and Practice

47

 

Abstract:
This article examines whether all constitutional rules and principles have the same value and occupy the same level of importance within a constitutional system, or is there some kind of hierarchy among them. The significance of these questions arises when constitutional rules come into conflict with one another. In this case, constitutional courts will be in an unenviable position to decide on such conflict, because this conflict is not between rules in different positions within the legal order (e.g., constitutions v normal legislation), but between rules whose values are derived from one source: the constitutional order. This paper suggests a number of mechanisms to overcome this conflict. Firstly, it argues that such a conflict must be characterised as a significant dilemma, and declared as a constitutional problem. Secondly, it argues that the existence of substantive hierarchies within constitutions must be textually and judicially recognised. Finally, it proposes that this conflict cannot be overcome by adopting the power that has been assigned to the constitutional court as a negative legislator. However, there is a need to extend the role of constitutional courts to become positive legislators in order to reconcile the conflicted constitutional provisions without stripping the constitutional values from them. To achieve this end, this article develops a framework for understanding how conflicting constitutional principles should be reconciled by exploring the idea of substantive hierarchies within constitutions.

Keywords: Substantive hierarchy, constitutional rule and principles, conflict of
constitutional rights.

 

(2018) 45 (1) JMCL

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 – From Conflict of Jurisdictions to Reaffirmation of Constitutional Supremacy

73

 

A Reaffirmation of Malaysia as a Secular State.
It is hoped that the decision of Indira Gandhi, decided in the most fashionable manner that constitutional enthusiasts could expect, would finally put an end to the impasse in relation to the conflict in jurisdictions between the Civil and Syariah Courts. It is now for the executive and legislative branches of government to act on the judiciary’s clarion call and finally table the proposed amendments to section 88 of the LRA to be passed in Parliament as follows:
(1) Where a party to a marriage has converted to Islam, the religion of any child of the marriage shall remain as the religion of the parties to the marriage prior to the conversion, except where both parties to the marriage agree to a conversion of the child to Islam, subject always to the wishes of the child where he or she has attained the age of eighteen years.
(2) Where the parties to the marriage professed different religions prior to the conversion of one spouse to Islam, a child of the marriage shall be at liberty to remain in the religion of either one of the prior religions of the parties before the conversion to Islam.

 

(2017) 44 (2) JMCL

Protecting Retail Investors in the Malaysian Capital Market – Petrina Tan Tjin Yi

1

 

Abstract:
 This paper examines the retail investor protection framework in Malaysia. It explains how although consumer protection and investor protection have similar characteristics, they have different developmental trajectories which have implications on the applicable regulatory approaches. This paper then provides a background of the capital market regulatory framework and retail investors in the Malaysian capital market context. It studies the classification of investors in the Malaysian framework, focusing on the distinctions between sophisticated and retail investors and argues for a more nuanced categorisation of investors to take into account modern market realities and international trends. While mandatory disclosure and investor education are critical parts of a functional securities regulation regime, it is argued that they are limited in their effectiveness in protecting retail investors. In view of the limitations of disclosure and investor education, this paper submits that regulatory paternalism is justified within certain parameters and considerations to ensure that retail investors are adequately protected.

 

(2017) 44 (2) JMCL

Limitations of Social Security Laws and Policies Vis-A-Vis Migrant Workers in Malaysia – Noor Shuhadawati Mohamad Amin, Norjihan Abdul Aziz & Zuraini Ab Hamid

21

 

Abstract:
 On the basis of the standards established by the international legal regimes and the principle of equality of treatment which is enshrined in the Federal Constitution, it is argued that the social security laws enforced in Malaysia are discriminatory vis-a-vis migrant workers. This is because the country has two different laws governing national workers and migrant workers in the case of employment injury. Under these laws, the benefits provided to migrant workers are inadequate and inequitable because they are inferior to the benefits offered to national workers. Furthermore, the invalidity benefit which is received by national workers is not made available to migrant workers. The old-age benefit introduced by the national provident fund is unfair to migrant workers because their contribution is not made compulsory and their employer’s contribution is very low as compared to the benefit enjoyed by national workers. Additionally, the portability of the social security rights from Malaysia to migrant workers’ home country fail to be enforced due to lack of coordination through bilateral and multilateral agreements between countries. Hence, this research seeks to analyse the employment injury schemes under the Employees’ Social Security Act 1969 (ESSA) available to national workers and workmen compensation scheme under the Workmen’s Compensation Act 1952 (WCA) available to migrant workers. Further, this research also attempts to investigate the savings for retirement age provisions under the Employees’ Provident Fund Act 1991 (EPFA) specifically for migrant workers and other policy issues such as portability of social security rights and overlapping of ministerial responsibilities. These shortcomings make a strong case for extending social security rights to migrant workers in Malaysia on the basis of equality.

 

(2017) 44 (2) JMCL

Women’s Access to Justice in Bangladesh: Constraints and Way Forward – Ajnin Begum and Nirmal Kumar Saha

39

 

Abstract:
 Bangladesh’s prevailing justice system is viewed by many as gender biased, anti-poor and exclusionary. Accessibility to the justice system is one of the most important strategies for legal empowerment for women. Legal, social, institutional, economic constraints such as inadequate legal framework, institutional barriers, lack of legal awareness, gender discrimination and poverty are the main barriers that women in Bangladesh face in obtaining access to justice. Securing access to justice for women requires comprehensive strategies and action plans to address the constraints mentioned above. It also involves a complex combination of legal and institutional reforms so that justice system can reach women in rural areas. In order to make the Bangladeshi justice system more accessible for women and legal empowerment for women operational, collaboration and coordinated efforts are needed by a host of legal actors from pro bono lawyers, activist judiciary, to NGOs.

 

(2017) 44 (2) JMCL

Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & another case – A Landmark in Constitutional and Land Acquisition Law – Lim Wei Jiet

59

 

Abstract
For close to 30 years, the Malaysian judiciary has lived under the shadows of the 1988 amendment that removed the phrase “judicial power of the Federation” from Article 121 of the Federal Constitution.1 This legislative blow struck at the very heart of the principles of separation of powers and the independence of the judiciary in Malaysia. The Federal Court in 2007 even explicitly acknowledged the inferiority of the Courts from amongst the three organs of government in light of the amendment.


However, in 2017 the Federal Court courageously and emphatically turned the tide on what was deemed a foregone conclusion. In unanimous fashion, the apex bench in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & another case (Semenyih Jaya Judgment) recognised the basic structure doctrine and proceeded to decide that the 1988 amendment cannot take away sacrosanct constitutional concepts such as separation of powers and judicial independence.

 

(2017) 44 (2) JMCL

Arbitration in Asia: What does the future hold? – Peter Godwin

71

 

Abstract:
International arbitration is now widely accepted in Asia as the preferred form of dispute resolution in cross border transactions. Gone (mainly) are the days when arbitration was seen as a new process of which clients should be suspicious.

 

(2017) 44 (1) JMCL

The Regulation of Directors’ Remuneration: An Overview of the Malaysian Position – Sujata Balan

1

 

Abstract:
 This article discusses the laws and legal principles that govern the subject of directors’ remuneration in Malaysia. It examines the extent to which the Malaysian courts, companies legislation and shareholders of a company have control over directors’ remuneration and access to information concerning such remuneration. Importantly, this article will highlight and discuss the significant changes brought about by the Companies Act 2016 on this subject. Chief among these are the introduction of new provisions allowing members of public companies to inspect service contracts of directors and a new mandatory provision that requires the remuneration of directors in public companies to be approved by the members in a general meeting of the company.

 

(2017) 44 (1) JMCL

The Companies Act 2016: Key Changes and Challenges – Lee Shih

21

 

Abstract:
The Companies Act 2016 (2016 Act) has been brought into force in stages starting from 31 January 2017.1 To date all the provisions of the 2016 Act have come into force except for section 241 contained in Division 8 Part III of the 2016 Act on the registration of company secretaries and the corporate rescue mechanisms. The 2016 Act is a culmination of more than 10 years of Malaysia’s corporate law reform process. While there have been piecemeal amendments to the old Companies Act 1965 (1965 Act), the 2016 Act represents a fresh start and a modernisation of Malaysia’s corporate law framework. Before delving into the key changes contained in the 2016 Act, it is useful to look back at the corporate law reform process which led to the enactment of the 2016 Act.

 

(2017) 44 (1) JMCL

A Comparative Analysis on the Enforceability of Knock-for-Knock Indemnities in Thailand and the United Kingdom – Wan M. Zulhafiz

33

 

Abstract:
The standard form of oilfield service contracts, such as the Leading Oil and Gas Competitiveness (LOGIC) model, is widely used in Southeast Asia including Thailand. Under the LOGIC model form, the allocation of risk is set out by way of knock-for-knock indemnities where each party will indemnify the other for bodily injury or death of his employees and loss or damage to his property, regardless of negligence. However, under the Thai Unfair Contract Terms Act B.E. 2540 (A.D. 1997) (TUCTA), a contracting party is not allowed to restrict or exclude liabilities pertaining to bodily injury and death arising from his negligence. This restriction appears to be an attempt to hamper risk allocation in oilfield service contracts. On the other hand, the UK Unfair Contract Terms Act 1977 (UCTA) has a similar restriction. However, by virtue of the Supreme Court decision in Farstad Supply A/S v Enviroco Ltd [2011] UKSC 16, the knock-for-knock indemnities could be enforceable despite the restriction. Nevertheless, the knock-for-knock indemnities will be subject to the reasonableness test under UCTA. Thus, it could be argued that in spite of the restriction under TUCTA, the knock-for-knock indemnities in standard form oilfield service contracts e.g. LOGIC could still be enforceable in Thailand, subject to certain limitations. This note addresses the issue of enforceability of knock-for-knock indemnities pertaining to bodily injury and death in oilfield service contracts in Thailand. The methodology employed in this research will be a comparative analysis which will be carried out in a descriptive, analytic and prescriptive manner.

 

(2016) 43 (2) JMCL

Emerging Trends in the Regulation of Social Security – Kehinde Anifalaje

1

 

Abstract:
 This paper explores the trend in the regulation of social security in the developed and developing countries with special attention placed on three major policy areas of social security, namely, coverage, benefit structure and financing. It also discusses several policy options within social security provisions in particular, old age, medical, sickness, unemployment and work injury, in the light of fiscal and administrative constraints. The paper argues that social security is realistically, a functional institution in a developed country. It has been used as a means for promoting political, social and economic stability and for securing a myriad of accompanying advantages that have consequentially resulted in high standards of living. It concludes that developing countries, especially those in sub-Saharan Africa, need to improve their social security schemes (by enacting laws that are more adaptable to the socio-economic realities of the region) and commit to an increased budgetary allocation for social security (as seen in developed communities) in order to enhance social protection for the populace in respect of a defined contingency.

 

(2016) 43 (2) JMCL

The Introduction of the Fourth Estate into Malaysian Jurisprudence and its Impact on Political Libel: A Prefatory View – Jaspal Kaur Sadhu Singh

31

 

Abstract:
 The paper considers the impact of the Court of Appeal decision in Utusan Melayu (Malaysia) Berhad v Dato’ Sri DiRaja Haji Adnan bin Haji Yaakob on the role of the media as the Fourth Estate. It focuses on the determination by the court that a political libel suit against a newspaper will result in inhibiting free speech that is in the public interest such as a critique against democratically elected bodies or individuals. This paper argues that firstly, by the court taking the position as laid down in the House of Lords’ decision of Derbyshire CC v Times Newspapers Ltd, the court introduces the role of the media acting as a Fourth Estate into Malaysian jurisprudence, and secondly, building on the said position, prohibiting a political libel suit being taken by an individual against a media entity. It is contended that there is a foundational basis that by prohibiting a political libel action against a media entity, the court has endorsed this role as being vital in the functioning of a democracy. The paper sets out, firstly, an in-depth understanding of the role of the media as the Fourth Estate, the theoretical underpinnings and the underlying legal rationale, in particular the protection of freedom of speech and expression, for the justification of the said role. Secondly, the paper describes the proposition in Derbyshire and its extrapolation into Malaysian common law in Utusan Melayu. Thirdly, it establishes a nexus between the judgments in Derbyshire and Utusan Melayu that the media’s role to check on government is a dimension of freedom of speech and expression that should not be suppressed or curtailed, particularly by defamation suits against media entities that are viewed as stifling this role. Finally, the author reflects on several post-judgment considerations drawn from both judgments.

 

(2016) 43 (2) JMCL

Malaysian Preventive Detention Laws: Old Preventive Detention Provisions Wrapped in New Packages – Safia Naz & Johan Shamsuddin Bin Sabaruddin

59

 

Abstract:
 Preventive detention has become a common feature of the modern democracies, including Malaysia. The Malaysian Federal Constitution in Article 149 allows the enactment of preventive detention laws without the precondition of an emergency. The Internal Security Act (ISA), 1960 was the first preventive detention law which was passed under this constitutional provision. It was enacted to deal with the armed insurgencies of the Communist Party of Malaya (CPM) and permitted the Executive to keep individuals in preventive custody for indefinite periods of time. However, a series of amendments were introduced into the ISA, which drastically broadened the scope of the exercise of the power of preventive detention by inserting new grounds of preventive detention. Additionally, an amendment introduced in 1989 took away the authority of the courts to review the lawfulness of the detention orders. The life of the ISA ultimately came to an end in 2012 when the government repealed it in the face of constant criticism from opposition political parties and human rights organisations. However, the government subsequently brought back the old draconian provisions of the ISA through the enactment of three new security laws, namely, the Security Offences (Special Measures) Act, 2012 and the Prevention of Crime (Amendment and Extension) Act, 2014 and the Prevention of Terrorism Act, 2015. Since there is a dearth of literature concerning the extent and implications of the exercise of the power of preventive detention under the new security Acts, a comparative analysis of these laws has been carried out in this Article to demonstrate how the new laws are reincarnations of the old ISA.

 

(2016) 43 (2) JMCL

A Copyright Tale of Two Collecting Societies: Public Performance Malaysia Sdn Bhd & Anor v PRISM Berhad – Tay Pek San

79

 

Introduction
Under the Copyright Act 1987 (‘CA 1987’), a society or organisation which is set up to negotiate and grant copyright licences for and on behalf of copyright owners is referred to as a ‘licensing body’. Essentially, a licensing body grants licences and collects royalty on behalf of its members who are copyright owners. In Public Performance Malaysia Sdn Bhd & Anor v PRISM Berhad,1 the High Court presided over a dispute between two licensing bodies which centred on the issue of copyright ownership in a number of licensing documentations used in the course of royalty collection. It is the first reported case involving licensing bodies in Malaysia.

 

(2016) 43 (1) JMCL

Changing the Corporate Landscape: Enhancement of Corporate Governance in Malaysia – Tie Fatt Hee

1

 

Abstract:
Questions about corporate governance emerged following the financial failures in Asia, Europe, and the United States. In Asia, the sharp depreciation of some of the countries’ currencies and fall in the stock market during the 1997-98 period has been attributed to four reasons - failed corporate governance; inappropriate and weak economic policies; the International Monetary Fund’s mistake in forcing an increase in interest rates resulting in the closure of some banks; and the “Pangloss equilibrium” that created a bubble in asset prices. Additionally, rampant cases of corporate greed and widespread abuse in the financial sectors further aggravated the crisis. Following the breakdown in the corporate governance regimes and market discipline, a number of countries embarked on reforming their corporate governance legislations. This article examines the three phases of corporate governance reforms in Malaysia which have significantly altered the corporate governance landscape.

 

(2016) 43 (1) JMCL

The New Prevention of Terrorism Act 2015 (POTA): A Legal Commentary – Ho Peng Kwang

15

 

Abstract:
On April 7, 2015, our Parliament passed the new Prevention of Terrorism Act 2015 (POTA) after going through heated debate for more than 10 hours. The new POTA faced considerable opposition and criticism for introducing the continuing detention without trial, which the lawmakers have claimed to be similar to the already repealed Internal Security Act (ISA) that dominated Malaysia for the past 52 years. It was further contended by many quarters that the new POTA gives our government greater authority to track and intercept terrorist acts and the fear of it being abused is not guaranteed, judging from the past history of cases under preventive detention in Malaysia. Although our Prime Minister himself has given his assurance that the executive arm will not have any say on who to detain under POTA, nevertheless it creates new crimes, new penalties, and new procedures for use. The introduction of POTA by our government has also attracted adverse comments by Human Rights Watch Deputy Director Phil Robertson with the following remarks: “ by restoring indefinite detention without trial, Malaysia has re-opened Pandora’s box for politically motivated, abusive state actions”. Thus, it is the aim of this article to provide an assessment and legal commentary on the relevant sections of the POTA that are claimed to be ‘controversial’ by many, and whether it undermines basic human rights besides looking at other nations as a comparative study.

 

(2016) 43 (1) JMCL

An Assessment of Malaysia’s Compliance with the Current and Future International Standards of Criminal Enforcement Measures to Protect against Copyright Piracy on a Commercial Scale – Ainee Adam

35

 

Abstract:
 Being a WTO member, Malaysia is compelled to implement the standard of criminal enforcement measures established in Article 61 of the Trade-Related Aspects of Intellectual Property Rights Agreement in its national copyright laws. More specifically, Malaysia is required to criminalise wilful copyright piracy on a commercial scale and make available imprisonment and/or pecuniary penalties as punishment for the offence. The punishment should be set at a level sufficient to provide a deterrent, consistent with that made available for crimes of a corresponding gravity. While the Trade-Related Aspects of Intellectual Property Rights Council confirmed Malaysia’s compliance with the standard in 2003, it is time for the penal provisions in the Copyright Act 1987 (Malaysia) to be re-assessed particularly in view of Malaysia’s keen interest in ratifying the Trans-Pacific Partnership Trade Agreement (TPPA), and by extension, subscribing to a higher standard of criminal enforcement measures against copyright piracy on a commercial scale. The article first examines the penal provisions in the Copyright Act 1987 (Malaysia) with reference to the article 61 standard and subsequently assesses if the TPPA standard will herald a change in the national enforcement regime.

 

(2016) 43 (1) JMCL

In Search of a Mythical Exception to Privity of Contract in Indian Law – S.Swaminathan

53

 

Abstract:
 In a recent judgment, Utair Aviation v Jagson Airlines, the Delhi High Court formulated a novel ‘conduct, acknowledgement and admission’ exception to the privity of contract requirement. Two influential treatises on Indian contract law, Avtar Singh’s Contract and Specific Relief and Frederick Pollock and Dinsha Mulla’s Indian Contract Act 1872 too, recognise the exception and cite a long list of authorities in its support. This article argues that neither is the exception doctrinally warranted—based as it is on a problematic reading of the authorities cited in its favour—nor its invocation in the case or by the treatises justified. The Court’s claim that the ‘width’ of section 2(d) of the Indian Contract Act which, unlike the English definition of consideration, allows consideration to move from the promisee or another person, provides the doctrinal basis for an expanded list exceptions to the privity rule, will be contested. It will also be argued that the purported exception is rendered conceptually redundant by section 2(d) of the Indian Contract Act 1872. The discussion will have for its backdrop, the contrast between the English law and the Indian Contract Act on two cognate ideas, namely, privity of contract and privity of consideration, the conflation of which, it will be argued, engenders some of the confusion in the case under discussion.
The rule…is stated in the text-books as based upon the authority of the decision, and afterward, when it offers an easy solution of a difficult case, it is quoted by other judges upon the authority of the text-book, and so, without inquiry into its origin it comes to be regarded as a rule of law; and it is only when it is applied to cases in which it works injustice that the soundness of the rule begins to be questioned. – Edward Quinton Keasby

 

(2015) 42 (2) JMCL

Proof of Native Customary Title through Evidence of Occupation on the Cultural Landscape – Ramy Bulan

1

 

Abstract:
According to established principles of British colonial and international laws when the Crown acquired sovereignty over a territory, the land rights of local inhabitants under their own system of laws continued and are recognised as pre-existing rights. Their rights exist because they are derived from native laws, governance, practices, customs and traditions. Common law also acknowledges that use and occupation of land by indigenous inhabitants at the time of sovereignty gave rise to real property rights for at common law, every person who is in possession of land is presumed to have a valid title and persons in exclusive occupation of land have title that is good against anyone who cannot show better title. This paper presents a case study of Kelabit occupation, connection and interaction on the lands and territories as evidenced through historical, anthropological and archaeological records as well as oral narratives and cultural traditions passed down through the generations. Against the backdrop of a limited recognition of occupation and cut-off date for creation of NCR under the Land Code 1958, the writer discusses the cultural landscape of the Kelabit Highlands in Sarawak, showing how the burial customs, rich historical activities as evidenced in the megalithic as well as other non-megalithic cultural practices, unique to the Kelabit, mark past and continuous presence and connection to the land. Despite the absence of state demarcated and surveyed boundary, their presence is etched in the landscape of the land that they call their ancestral homeland providing a basis of claim both under their own laws and customs and under common law as well as satisfying the requirements of statute.

 

(2015) 42 (2) JMCL

Striking a Balance between Patent Rights and Access to Essential Medicines Through the Use of Compulsory Licenses – Comparative Study of Indian and Malaysian Patent Laws – Rhyea Malik

27

 

Abstract:
In view of the exorbitant prices charged by pharmaceutical companies as patent monopolists, the economically underprivileged, mostly residents of developing countries, are regularly denied access to essential medicines in as much as the medicines are largely beyond their means. ‘Compulsory Licenses’ are one of the means for bridging the gap between the high charges imposed by pharmaceutical patent monopolists and the affordability of the economically underprivileged patients. In the pharmaceutical sector, ‘compulsory licenses’ can be employed by the government to allow generic pharmaceutical companies to produce and sell the patented essential medicines at a fraction of the price being charged by the pharmaceutical monopolists for meeting its twin objectives of ensuring accessibility and affordability of essential medicines for all. In this article, benefits and criticisms of compulsory licenses in the backdrop of the comparative breadth and depth of the Indian and the Malaysian provisions for compulsory licenses have been examined.

 

(2015) 42 (2) JMCL

An Initial Exploration of Malaysians’ Perceptions of SOSMA 2012 – Saroja Dhanapal & Johan Shamsuddin Sabaruddin

47

 

Abstract:
The Security Offences (Special Measures) Act 2012 (SOSMA) was passed by Parliament to replace the old Internal Security Act 1960 (ISA) and was given the royal assent on 18 June 2012. Since SOSMA came into play, it has not laid to rest the ongoing debate of its predecessor the ISA which was contended to be in contravention not only of the Federal Constitution but also the basic principles upheld under the Rule of Law (RoL). SOSMA has been scrutinised and debated upon at various levels both locally and internationally. This study examines the perception of SOSMA by a selected group, focusing on its implication with reference to the ISA, the Malaysian Federal Constitution and the principles upheld under the RoL. The study was conducted by survey questionnaire using a 5-point Likert Scale. Since the whole study was to evaluate perceptions specifically related to the laws in Malaysia, a non-probability purposive sample was selected comprising of lawyers, law lecturers, law students and those who are working in other sectors but with a legal background. The findings indicate that on the whole the respondents were of the opinion that an Act dealing with internal security is essential and required. However, the consensus is that SOSMA needs to be amended as there is a clear indication that it contravenes basic human rights as upheld under the RoL, and that it infringes rights protected under the Federal Constitution. The study ends with a recommendation for the survey to be carried out amidst a larger population and should the findings be similar, the government is then advised to re-examine the SOSMA with a view to retain, amend or repeal the said Act.

 

(2015) 42 (2) JMCL

Section 375 Exception, Explanations and Section 375A Malaysian Penal Code –Legitimising Rape within Marriage: A Call for Reform – Usharani Balasingam & Johan Shamsuddin Sabaruddin

69

 

Abstract:
This paper’s objective is to consider the constitutionality and defensibility of exception and explanations under s375 of the Malaysian Penal Code (Penal Code) which legitimises the offence of rape committed by a husband on his wife. Section 375A will also be considered to see if it provides a cure for the contravention. The current law legitimises rape committed within marriage. The rationale for the differentiation in treatment of rape within and outside marriage is explored and discussed. The justification for maintaining the provision in the current day setting considering the development of society, particularly with respect to women, who have gone from being treated as chattels or possessions to legal persona having rights and entitlements including the right to vote and rights under local laws, and international and regional conventions, is discussed. The relevance of the provision today and the need for reform of the Penal Code provisions to ensure compliance with the Malaysian Federal Constitution (Federal Constitution) in spirit and form and with current policies, regional and international conventions and the Islamic perspective are discussed. The relevance of local legislation such as the Malaysian Domestic Violence Act 1994 (Domestic Violence Act) and the effectiveness of the same in achieving the outcome of the policy and objective of the Act from the perspective of a rape offence are also discussed. The movement for reform to update outdated concepts currently reflected in present laws and to embody the current spirit and form of women’s status and rights as humans within society is a call much repeated and yet still ignored. This paper strives to keep alive the call for reform reminding all concerned of the jarring discrepancies between the Penal Code and the Federal Constitution and Malaysian State responsibility under regional, international human rights instruments and Islamic principles. The recommendation is to delete the s375 Penal Code exception, explanations and s375A.

 

(2015) 42 (2) JMCL

What is Rule by Law? – Ratna Rueban Balasubramaniam

99

 

Abstract:
My aim in this paper is to sharpen the popularly perceived association between rule by law and worries about arbitrary power. I argue that the use of law as a cloak for arbitrary power or rule by law is pathological to the rule of law because it undermines law’s capacity to facilitate or guide conduct. My analysis of rule by law pivots on the argument that the rule of law is an ideal of workable legal order understood as a framework of norms for facilitating the interests of legal subjects. The rule of law is therefore a moral idea to the extent that the attempt to construct and maintain such an order requires engaging the legal subject, as a rational moral agent possessed of vital interests. Since rule by law involves the attempt to use the law in a way that does not involve the systematic engagement of the legal subject so conceived but which nevertheless tries to project rule-of-law legitimacy by trading on the rule of law, rule by law strains the rule of law and corrupts the workability of legal order as a framework for facilitating the salient moral interests of legal subjects thus by damaging the rational and moral foundations of legal order. It is therefore apt to conceive of rule by law as a form of juridical pathology.

 

(2015) 42 (1) JMCL

Similarities of International Humanitarian Law and Islamic Law of Warfare: An Appraisal of The Principle of Distinction During Armed Conflict – Abdulrashid Lawan Haruna & U.S. Abbo Jimeta

1

 

Abstract:
Principle of distinction obliges belligerents to always distinguish between combatants and civilians and between civilian objects and military objectives, and shall accordingly direct their military operations only against military objectives. The principle is derived from humanity as such it is one of the basic and fundamental rules guiding the conduct of hostilities under International Humanitarian Law (IHL) and Islamic Law of Warfare. The essence of the principle of distinction is to secure civilian population and their objects from the risks and dangers of attack in conduct of hostilities. Notwithstanding the significance of the principle, belligerents often fail to adhere to this principle thereby resulting in wanton killing of civilians and destruction of civilian objects. This has influenced the perception of some people towards the existence of such humanitarian principle under Islamic law, especially in conflicts that have religious elements. Thus, it is imperative that the article examines the principle within the legal framework of IHL and Islamic Law of Warfare in order to bring to light the platform for its effective application by both states and armed groups during armed conflicts.

 

(2015) 42 (1) JMCL

Terror on Diplomats and Diplomatic Missions in The Name of Jihād: Islamic Law Perspective – Muhammad-Basheer. A. Ismail

19

 

Abstract:
Terrorist attacks on diplomats and diplomatic facilities have been on the increase in recent years. It has often been argued that most of the terrorist attacks have been perpetrated by Muslims in the name of Islam. These attacks on diplomatic personnel and facilities have generally provoked some questions among international and Islamic law experts from which emanate the subject of discussion in this paper. This article intends to critically examine the following questions: what is the relationship between the concept of jihād and terrorism?; what is the legality or otherwise of non-State actors declaring jihād?; can diplomatic envoys and missions be subject of attack even during a lawfully declared jihād?; can the maiming or killing of unarmed civilians be justified based upon the principles of jihād?; does the dichotomisation of the world into dār al-harb (the abode of war) and dār al- Islām (the abode of Islam) have any relevance to the concept of jihād?; and what are the responses of Muslim States to these terrorist attacks and how do they treat such violation of the principles of international diplomatic law based on the criminal justice system of Islamic law? This article argues that even in a war situation, Islamic law dictates that diplomatic envoys and facilities must be safely protected. This article further argues that since the principles of jihād are fundamentally diametrical to the act of terrorism, it will, therefore, be erroneous to equate the jihād ideology with terror-violence.

 

(2015) 42 (1) JMCL

Cultural Repercussion on Mediation: Exploring A Culturally Resonant Mediation Approach Germane to Asia – Jamila A. Chowdhury

43

 

Abstract:
Cultures always have profound impacts on what people do, and more importantly how they do it. The practice of mediation is not an exception. Therefore, a dynamic mediator also endeavours to mitigate ‘cultural conflict’ in a dispute so that cultural departure does not exacerbate or create another conflict. Adapting Hofstede’s theory on ‘style of dispute resolution practices in Asian commercial organizations’ into mediation, this paper explains why a bit of an evaluative approach from mediators would be more appreciated and fruitful in Asian cultural context. Practices of mediation in indigenous Asian societies are also analyzed to deduce that historically Asian people are accustomed with practicing evaluative mediation to resolve their disputes. In brief, theories and practices of mediation synthesized in this paper would assist puzzled practitioners and policy makers in Asia to choose between evaluative and facilitative mediation. This paper, however, forms a strong argument why practice of evaluative mediation would be more productive and apposite in Asian context.

 

(2015) 42 (1) JMCL

A Comparative Study: ISA 1960, SOSMA 2014 and the Federal Constitution – Saroja Dhanapal & Johan Shamsuddin Sabaruddin

67

 

Abstract:
The Internal Security Act (ISA) 1960 was the preventive detention law in force in Malaysia prior to the enactment of the current preventive law, the Security Offences (Special Measures) Act, (‘SOSMA’) 2012. ISA 1960 was enacted after Malaysia gained independence from Britain in 1957. It allowed for detention without trial for criminal charges under limited, legally defined circumstances. On 15 September 2011, the Prime Minister of Malaysia, Dato Seri Najib Tun Razak said that this legislation will be repealed and replaced. The SOSMA 2012 was passed by the Parliament to replace the ISA 1960 and it was given the royal assent on 18 June 2012. Since the first Act came into play in 1960, there has been an ongoing debate as to its implication and necessity which the new Act has not laid to rest. Since its enactment, this new Act has been scrutinized and debated upon at various levels both locally and internationally. This research analyses the SOSMA 2012 to identify whether the new Act has removed all the concerns raised against the previous Act, the ISA 1960. It also aims to ascertain if any of the rights upheld in the Federal Constitution are being violated by the provisions in the new Act. The findings indicate that there is still room for concern on the implications of the Act in reference to infringement of the rights upheld in the Federal Constitution. However, these infringements can also be said to be in alignment with Article 149 of the Federal Constitution. The paper ends with a comment that it is too early to make any judgment be it positive or negative as the Act is still new and it has to run its course before any conclusion can be made.

 

(2014) 41 (2) JMCL

Through the Nigerian Prism – An Appraisal of Constitutional Democracy and Acts of Terrorism – Ayoade M. Adedayo

1

 

Abstract:
Terrorism, increasingly, is becoming part and parcel of the Nigerian experience. This is highly unfortunate in a country with considerable social, economic and religious tensions. Acts of terrorism seemingly threatens emerging democracy in the country. While the confrontation between acts of terrorism and democratic norms or traditions are not unique in the global experience, Nigeria as an emergent power in Africa is threatened as a nation, with dire consequences for the West Africa sub-region. Home grown terror groups such as Boko Haram have set up a confrontation with the Nigerian state that undermines the Constitution and democracy which emphasized dialogue, debate and consensus. It is difficult for such rationality to co-exist with acts of terror perpetrated in the name of religion. Thus this paper seeks to describe and illuminate the Nigerian terrorism experience and challenges through the spectrum of constitutional democracy. It warns that this regional giant cannot win the fight against acts of terror through a response that is not in accordance with constitutional democracy. 

 

(2014) 41 (2) JMCL

In Quest of a Legal Framework for Domestic Workers in Bangladesh – Md. Raisul Islam Sourav

21

 

Abstract:
Bangladeshi domestic workers suffer from lack of legal protection. There are a lot of laws, but none can ensure the rights of the domestic workers separately. Albeit, the Constitution of the People’s Republic of Bangladesh guaranteed some rights of the domestic workers impliedly. However, domestic workers can seek redress under ordinary civil and criminal laws of Bangladesh. Nonetheless, they need some sort of special treatment, because they work in private place and in more vulnerable situation. In addition, the nature of their work is quite different from other traditional work sectors. There is no provision for their working hours, leave, minimum wages, holiday, maternity benefits etc. Though the ILO Convention No 189 has been adopted to ensure the rights of the domestic workers but Bangladesh is not a state party to the convention. Hence they need a new piece of legislation to protect their employment rights. This research paper aims to find out the lacunas of existing laws of Bangladesh and recommend to enact a new law in this regard.

 

(2014) 41 (2) JMCL

Selected Legal Issues Concerning Surrogacy in Malaysia – Sridevi Thambapillay

35

 

Abstract:
Surrogacy, which originates from the Latin term “surrogatus” (substitute), generally refers to an arrangement where a woman bears a child for another woman. The Oxford dictionary defines surrogacy as the process of giving birth as a surrogate mother or of arranging such a birth. Surrogacy can be used for two purposes, i.e. commercial or altruistic. Generally, there are two types of surrogacy, i.e., first IVF or Gestational surrogacy and secondly, traditional or natural surrogacy. The former refers to a situation where a woman, whose uterus has been removed but still has her ovaries, provides her eggs to be in vitro with her husband’s sperms by the IVF or ICSI procedure. The embryo is then transferred into the uterus of a surrogate mother. On the other hand, the latter refers to a situation where the surrogate is inseminated with the sperm of the male partner of an infertile couple. Surrogacy cases in Malaysia are on the rise. However, it is disheartening to note that the Malaysian legislature has not passed any specific law to govern the issue of surrogacy. Many couples who are unable to conceive a child enter into a surrogacy arrangement without realizing the consequences of this arrangement. Hence, the purpose of this paper is to look at certain legal issues that may arise as a result of a surrogacy arrangement. Basically, four legal issues would be discussed in this paper: first, the legitimate status of the child concerned, the right to guardianship and custody of the child, the child’s right to maintenance and the child’s right to inheritance. The writer would then make an attempt to suggest reforms to the issues above and also examine the possibility of enacting a law concerning surrogacy. In discussing the abovementioned issues, reference would be made to surrogacy laws in other jurisdictions, such as Queensland (Australia) and India. 

 

(2014) 41 (2) JMCL

Directors’ Duties of Care, Skill and Diligence: An Analysis of Some Developments in Malaysia – Sujata Balan, Saw Tiong Guan, Sarah Tan Yen Ling

53

 

Abstract:
In 2007, the Malaysian Companies Act 1965 was amended to incorporate new provisions to deal with directors’ duties of care, skill, and diligence and their powers of delegation and reliance on information provided by others. In addition, a ‘business judgment rule’ was inserted into the Act. This article examines, from the Malaysian perspective, the origins of these novel provisions, their contents, the need for enacting them and their likely impact on business processes and managerial decisions made by company directors in Malaysia. 

 

(2014) 41 (2) JMCL

The Development of the Anglo-Muhammadan Law in India - Andrea Borroni,  Marco Seghesio

77

 

Abstract:
The Anglo-Muhammadan Law represents a peculiarity within the current context of comparative law, owing to its threefold nature of Muslim personal law, influenced by the Common Law, and belonging to the broader Indian legal system. Nonetheless, despite its singularity, it represents a field of study which is frequently overlooked. The present essay attempts, at least to some extent, to shed light upon it. In the first place, the article provides an historical overview of the development of the Anglo-Muhammadan Law, focusing on the main transformations and innovations introduced by the British and their unavoidable legal, social and religious consequences. This essay, however, illustrates, in addition, that, despite a powerful drive towards uniformity fostered by the prevailing system, the Anglo-Muhammadan Law preserves the distinctive features of the community it governs, for identity reason. Hence, the peculiar outcomes of the evolution of this branch of law could serve as a model to other national legislators facing similar issues within multicultural and multi-ethnic contexts.

 

(2014) 41 (1) JMCL

Dowry Prohibition Laws in Bangladesh: Problems of Implementation – Mohammad Abu Taher & Siti Zaharah Binti Jamaluddin

1

 

Abstract:
The practice of dowry, which is neither supported by personal law nor State laws, has become an acute problem resulting in breakage of social malady and texture in Bangladesh in recent years. The dangerous aspect relating to it is the physical and mental torture on the wife due to inadequate or non-payment of dowry. Every year a number of women are tortured, killed and considerable numbers of women commit suicide for this existing evil custom. To deal with this social menace, the Parliament of Bangladesh enacted the Dowry Prohibition Act, 1980, which was subsequently amended in 1982, 1984 and 1986. In 2000, a more stringent law i.e. the ‘Women and Children (Repression Prevention) Act, 2000’ was passed by the Parliament to prevent cruelty against women including dowry-related violence. This Act was amended in 2003 to remove certain loopholes and to make it more severe. But all the efforts of the government ended in vain, as a good number of instances are being reported regarding torture and oppression of women every now and then due to dowry. Although specific laws have been formulated to deal with these matters, these laws are not effectively implemented to eradicate the practice of dowry from the society and to stop the violence against women relating to dowry due to various problems. Thus, based on detailed fieldwork, this paper is an attempt to identify the problems that hinder the effective enforcement of the dowry prohibition laws in Bangladesh.

 

(2014) 41 (1) JMCL

Privatisation of Pension Scheme in Nigeria: Analysis and Appraisal of the Pension Reform Act, 2004 – Kehinde Anifalaje

17

 

Abstract:
The enactment of the Pension Reform Act, (PRA) 2004 is evidence of a great change in pension administration and management in Nigeria considering the abysmal failure of the old pension scheme to provide retired public servants pensions and gratuities as and when due. The PRA, 2004 displaces to a large extent the Pay-As-You-Go system of the repealed Pension Act, 1974 and enthrones a new pension regime described as the defined-contribution scheme which entails the transformation of the financial and administrative structure of the pension system. The central feature of the new system is the establishment of individual capitalization fund and the consignment of pension fund assets to private-sector organizations for greater efficiency and maximal return on investment under strict regulation and supervision of the regulatory authorities. This paper focuses on an analysis of the new pension law in Nigeria. It also examines the extent of the privatisation of the pension scheme in Nigeria and the economic and social implications of privatisation of pension schemes in general. The paper also highlights defects in the law and proffer suitable reform proposals. The paper concludes with a discussion on the level of socio-economic development in the country, especially the level of poverty and argues for the establishment of a social-assistance-based national old-age pension that would provide means-tested benefits to the elderly poor population.

 

(2014) 41 (1) JMCL

Towards Sustainable Public Procurement in China: Policy and Regulatory Framework, Current Developments and The Case For A Consolidated Green Public Procurement Code – Cao Fuguo & Zhou Fen

43

 

Abstract:
This paper presents an assessment of the effectiveness of China’s current green procurement system by reviewing the current Chinese laws governing public procurement, energy, environment, resources and government assert management, and the operating green government procurement projects, and in a number of cases, through site interviews. It is augured that there are great potentials for the development of sustainable public procurement policy in China given the huge size of the Chinese government procurement market, and the unprecedented political and legal environment for such developments. However, the effectiveness of the current systems is limited. To effectively implement the current green procurement policy and better exploit the potential of sustainable procurement, it is submitted that green procurement policies are implemented through “procedural extension” and “coverage expansion” of the current green procurement systems and these aspects are consolidated into a sustainable public procurement code. The proposed Code would help embrace the concept and framework of sustainable procurement, and confirm, clarify, coordinate and improve the current green procurement systems as well as bring awareness to the government procurement professionals of the many environmental requirements in other area of rules and standards other than public procurement, and thus contributes to the sustainable development goals in general.

 

(2014) 41 (1) JMCL

Libelocracy – Clive Walker & Russell L. Weaver

69

 

Abstract:
“Libelocracy” involves several elements. The first is the deployment of the law of libel by politicians against non-political publishers. Second, the use is tactical in a more directly political sense – in other words, the action is brought against other politicians and is not for the vindication of purely private reputations. Third, the tactic develops into either repeated claims or a single large claim, sufficient to cause significant political damage to a political opponent. Fourth, by combining or repeating these tactics, libelocracy can become a major determinant of political success and failure. The paper will explain how defamation and related litigation, both civil and criminal, has impacted upon recent political life in Malaysia and Singapore in comparison to the United Kingdom. Some corrections, designed to encourage the confinement of political disputes within political forums, are suggested for Malaysia and Singapore, based upon developments in English common law.

 

(2014) 41 (1) JMCL

Analysis on Regional Autonomy associated with the Legislative Process in Perspective of Sociology of Law – Dr. Edie Toet Hendratno

99

 

Abstract:
The spirit of reform demanded an overhaul of the constitutional system in Indonesia, coloring the utilization of existing state instruments and leading to the integration and execution of duties and functions of the government. Law No. 32 of 2004 on Regional Government is the basis of the implementation of good and clean governance principles (Good and Clean Governance), reflecting the desire of the government to implement good governance in local government administration. After the fourth amendment to the Constitution of the Republic of Indonesia of 1945 (UUD 1945), the concept of a centralized unitary state with political and economic resources under the control of the political elite in the center turned into a decentralized unitary state by giving space to the affected regions to manage their own affairs. Good governance is expressed through the principles of democratization as well as the limitation of power. This principle of separation of power, both horizontally and vertically, is closely related to regional autonomy as expressed through equal relations between central and regional governments.

 

(2014) 41 (1) JMCL

Administration of Islamic Law in Kadhis’ Court in Zanzibar: A Comparative Study with the Syariah Courts in Malaysia – Dr. Moh’d Makame Hajil

107

 

Abstract:
Protection and application of Muslim Personal Laws (MPL) is one of the fundamental problems presently faced by many Muslims. The practices that regulate social life of Muslims, particularly at State level, do not appear to be fully in accord with Islamic law, may be because the same are politically controlled and statutorily limited. As a consequence, the functioning of the courts elsewhere and that of Kadhi’s Courts in Zanzibar in particular has become both complicated and difficult. The same in a view an attempt is made, hereunder to study and examine the legal framework of administration of MPL in Zanzibar its problems and prospects while juxtaposing it with the practice of the courts in Malaysia without losing the sight of historical developments of the both in this regard. Finally suggestions shall be made as how to strengthen the application of MPL in Zanzibar.

 

(2014) 41 (1) JMCL

Separate Treatment of Juvenile Offender in Malaysia and Bangladesh: An Overview – Dr. Nahid Ferdousi

125

 

Abstract:
Delinquent children have the right to legal protection and fair treatment in a justice system that respects their human rights. Separate legislation along with child-friendly justice is very important in changing the life of offenders. The main objectives of the separate legal measures are protection, rehabilitation and reintegration to restore the delinquent children to normal living condition and to develop their personality as a law abiding and responsible citizen. But the law and policy for child protection is developed in different countries in conformity with the Convention on the Rights of the Child (CRC) 1989 and other international guidelines. The many differences and complexities of juvenile justice and the variations in practice have not been always easy to capture and reflect in these guidelines. Comprehensive juvenile justice systems do not exist in every country. This article assesses the legal mechanisms for protection of juvenile delinquents in Malaysia and Bangladesh.

 

(2014) 41 (1) JMCL

Appraisal of What Constitutes Legal Gaps and How They Are Filled in Different Jurisdictions – Ogwezzy Michael. C

141

 

Abstract:
Legal gaps are gaps in law that results from the legislator’s mistake, short-sightedness, carelessness or tardiness. In Nigeria and other jurisdictions, the following types of legal gaps are distinguished: insufficiency, that is where the law fails to make rules when it should do so, inconsistency meaning that the law contains contradicting rules, indeterminacy: the rules of law are unclear, axiology legal gap: the rules of law contradict moral order. Legal gaps can be resolved by the following tools: analogy: resolving the case in question based on a similar case to which there is an applicable rule; broad interpretation: interpreting the rule applicable to the similar case in such a way as expanding it to the present case as well; exercising discretionary power when determining the facts of the case. In another perspective and even much broader definition implies that a legal gap exists when the norms in force issued by the bodies with legislative power do not contain any provision by which the judge could resolve the case in question and under this circumstance the weight of evidence adduced by the parties will be placed on the scale of justice to see where the weight will tilt to. Gaps in a legal system such as “logic legal gaps” can be filled when the judge can deduce the applicable norm by way of pure logics. In the case of “alternative legal gap” which implies where the law provides more than one applicable norms without specifying which one is to be used in resolving a particular legal dispute and “judgement legal gap”, in these situations, the judge is to complete the law on the basis of moral judgment. From the above propositions, this paper will do an “appraisal what constitutes legal gaps and how they can be filled under different jurisdictions”. This paper is therefore intended to further study the meaning of gaps in a legal system, how these gaps could be recognized and whether their existence is a precondition for equitable activity. Thereafter the author examine the processes involved in filling the gaps by considering established procedures and hierarchical sources to be referred to in the process of filling the gaps that exists in law.

 

(2013) 40 JMCL

Re-Identifying Property in The Malaysian Penal Law – Wong Wai Wai

1

 

Abstract:
The lack of legal recognition, acknowledgment on the significance, importance and the value of online resources such as information, data, keyword and meta-tags has caused them to be held in a vulnerable position and subjected to various forms of misuses and abuses. Currently the existing cyber-specified provisions are specifically focussed its main task of regulating illegal acts and activities occurring daily in cyberspace rather than protecting online resources. The lack of adequate legal protection for these online valuable resources is seriously affecting the level of confidence of internet users in conducting their business in cyberspace.
One of these effective ways in protecting these online resources is to classify them as ‘property’. Any violation of such should be governed by the relevant penal provisions relating to property. In Malaysia, the penal provisions for offences against property has confined its applicability to corporeal and moveable property only, such penal provisions could not be used to protect online resources in that they are incorporeal and intangible in nature. The penal provision as such lacks its identity in classifying what property is and its definition.
In proposing to extend the application of the Malaysian penal law to cyber cases relate to online resources, ‘property’ should further be redefined under the ‘bundle of rights’ theory. By defining property which consists of the bundle of rights and interests, this bundle theory would overcome the conceptual hurdle and that these online assets are to be regarded as property even though it lacks physical status and be accorded the same level of protection as any other type of property recognised by the law.

 

(2013) 40 JMCL

Adaptive Efficiency and the Corporate Governance of Chinese State-controlled Listed Companies: Evidence from the Risk Tolerance of Chinese Domestic Venture Capitalists – Lin Zhang

21

 

Abstract:
The existing literature on the corporate governance of Chinese state-controlled listed companies (the SCLSs) focuses more on agency costs. There is inadequate attention being paid to its adaptive efficiency through the perspective of venture capital (VC). With the template of American VCs, this article tries to fill this gap on the basis of the evidence from the risk tolerance of Chinese domestic venture capitalists. The existing research has established the linkage between the prosperity of the American VC industry and the remarkable risk tolerance of American venture capitalists. Unfortunately, with the institutional barriers imposed by the control-based model of the SCLCs, the risk tolerance of Chinese domestic venture capitalists is lower than their American counterparts. The implication from this study is that adaptive efficiency and agency costs are equally important factors which ought to be considered when we put forth any reform proposal for the corporate governance of the SCLCs. In case of neglecting either of them, the overall efficiency will be jeopardised.

 

(2013) 40 JMCL

An Analysis of ‘the Law’: Legal Positivism – Tay Choon Howe

49

 

Abstract:
The study of law is not just confined to accepting the rules as they are and applying them to factual circumstances. This article attempts to bring some contrast to the various legal theories from a legal positivism perspective in exploring, in broad terms, the justification for obedience to the law and whether such obedience is justified. One of the ever-pervading issues revolves around the interpretation and reception of what constitutes ‘(im)moral’ and ‘justice’. In this article, how the ‘law’ views ‘(im)morality’ and ‘justice’ is examined in the light of Nazi Germany during World War II vis-à-vis legal positivism. Whilst it is never meant be a treatise, it is hoped that by examining the legal theories and eminent jurists alike here, there will be some clearer understanding of what is understood to be the ‘law’.

 

(2013) 40 JMCL

Public-Private Partnership Initiative in Nigeria and Its Dispute Resolution Mechanism: An Appraisal – M.T. Adekilekun, O.A. Olatunji, C.C. Gan & M.M. Akanbi

67

 

Abstract:
In the African countries, the provision and supply of infrastructural facilities and the procurement of other public utilities were, until recently, absolutely under the sole control of the government. However, due to corruption, leakage and wastage in the public procurement process, coupled with the lackadaisical attitude of the government officials towards the same, and more importantly, with the realisation and acknowledgement of the skills and competencies of the private sector in building infrastructure, the governments all over the world including those in Africa have begun to divest themselves of their monopoly in the field of infrastructural supplies and development. This rising trend has led to a more resourceful, efficient and smart partnership between the public and private sectors in the matter of infrastructural development, and this recent phenomenon or trend is popularly propagated as Public-Private-Partnership (PPP). It has now come to stay and will intensify over time. This article seeks to examine the definition, ambit, as well as the practical operation of PPPs in the economic development of contemporary states. It has a bias towards dispute resolution covering the various ADR mechanisms with a particular preference for arbitration. It postulates that since disputes are inevitable in all business transactions, and since PPP practitioners are usually sponsored by banks and other financial institutions, there is an urgent need to devise a faster and more efficient mechanism of dispute resolution aside from conventional litigation so that shareholders’ funds are not unnecessarily bogged down by prolonged litigation in the courts.

 

(2013) 40 JMCL

Establishment of Judicial Commissions in Malaysia and Bangladesh to Strengthen the Constitutional Process of Appointment of Judges of the Higher Judiciary: A Comparative Study – M. Ehteshamul Bari & Johan Shamsuddin Bin Sabaruddin

87

 

Abstract:
In order to strengthen the constitutional process of appointment of judges in Superior Courts, Malaysia by enacting an Act in 2009 established the Judicial Appointments Commission and Bangladesh established a Supreme Judicial Commission in 2008 by promulgating an Ordinance. This Act / Ordinance was neither passed / promulgated in pursuance of any provisions of the Constitution nor by introducing any amendment to the provisions of the Constitution. The recommendations of the both the Commissions were not given binding force on the executive. The power of the executive to accept or reject the candidates recommended by the Judicial Appointments Commission / Supreme Judicial Commission at his pleasure defeats the very objective of establishing the Commission for appointing the most competent and suitable persons as judges of the superior courts in Malaysia and Bangladesh.

 

(2012) 39 JMCL

The Doctrine of Utmost Good Faith: Back to Common Law to Move Forward? – Nurjaanah @ Chew Li Hua

1

 

Abstract:
The article re-examines the position of the doctrine of utmost good faith in insurance contracts, specifically in the context of insurers’ duty. A historical development of the doctrine is undertaken to uncover its actual basis. This is then utilised to examine its development under English jurisdiction, followed by the Australian and American position. The unsatisfactory position of the doctrine as developed by the English courts have resulted in numerous attempts to reform the law, the latest being the on-going efforts by the Law Commission. The author argues for a return of judicial activism in construing the true meaning of the doctrine to include the element of fairness and reasonable expectation of consumers. This is in line with current advancement of information technology and data management available to the insurance industry. The unique Malaysian position is also highlighted whereby the prudent insurer’s test no longer applies to non-disclosure or misrepresentation of material facts. It has been replaced by the reasonable assured’s test under section 150(1) of the Insurance Act 1996. The Bank Negara Guidelines which set the standard of good practices for insurers are also referred to as they incorporate the concept of fairness and fair treatment of consumers. The doctrine of utmost good faith thus acquired more depth and meaning when applied equally to insurers as well.

 

(2012) 39 JMCL

Liberalization of the Traditional Rule of Locus Standi in the United Kingdom and Malaysia: A Comparative Study – M. Ershadul Bari and M Ehteshamul Bari

23

 

Abstract:
The classical and restrictive rule of locus standi, which is inherent in all legal systems, is aimed at to limit the access of the citizen to the court of law by insisting that only a ‘person aggrieved’ can maintain an action seeking remedy for the violation of the public or private rights so that wasteful challenges by busybodies can be excluded and limited judicial resources are not being misused. In the United Kingdom, Lord Denning MR in a series of epoch-making decisions in Blackburn’s cases, given mainly in the early 1970s, broadened the ambit of access to justice by evolving the concept of ‘sufficient interest’ in place of ‘aggrieved person’. The liberalizing approach to the rule of locus standi was ultimately approved in 1977 in a new Order 53 of the Supreme Court Rules by stipulating a common standing test of ‘sufficient interest in the matter’ to which the application for judicial review relates. This neo ‘sufficient interest’ test has received a more progressive interpretations by the superior courts of the United Kingdom to allow access to judicial review not only to a particular applicant for himself but also to three other types of applicants claiming surrogate, associational or citizen standing from the realization that the possibility of instituting such applications challenging the illegalities of the executive or a public authority will induce the authority concerned to act with greater responsibility which will have the effect of maintaining the rule of law and furthering the cause of justice. But in the common law country of Malaysia, the liberalization issue of locus standi, set in motion in early 1980s in the cases of Lim Cho Hock, Mohamed bin Ismail and Tan Sri Haji Othman Saat, was held back by the then Supreme Court of the country in 1988 in the UEM case maintaining restrictive approach towards locus standi in public law which is in somewhat out of tune with the change taken place in this regard in other jurisdictions notably in the United Kingdom. It was not kept in mind that the liberalization of the rules of standing over the years in various jurisdictions owes essentially to the creative and innovative interpretation of the few outstanding judges. Therefore, it has been proposed that the apex court of Malaysia should reconsider its conservative stance in an appropriate case for stretching the standing rule to enable a public spirited individual acting bona fide to institute an action for judicial redress of a public wrong or injury so that the executive or public authority can be kept on its toes and public laws are not violated with impunity. 

 

(2012) 39 JMCL

Procedural Reform to the System of Expert Evidence in Medical Negligence Cases in Malaysia – Joseph Lee

61

 

Abstract:
The system of expert evidence in medical negligence cases in Malaysia is adversarial. Under the rules of the court, litigants may engage their own medical experts to advance their case although limited authority is conferred upon a High Court judge to appoint an independent expert. Although medical experts owe an obligation to the court to be impartial in their testimony, judicial commentary from Malaysia, United Kingdom and Australia shows that this common law duty has failed to curb the problem of biased expert testimony. Whilst the United Kingdom and most state jurisdictions in Australia have implemented procedural reform to move away from the system of litigant-appointed experts in, among others, medical negligence proceedings, there is no indication that Malaysia is heading towards any form of procedural reform. This article analyses the problems facing the use of experts in medical negligence litigation in Malaysia and argues for procedural reforms by drawing on the developments in the United Kingdom and Australia.

 

(2012) 39 JMCL

The Limitation Period for Actions upon a Judgement and Execution Proceedings in Malaysia – Sujata Balan

77

 

Abstract:
This article examines the legal position concerning an important aspect of the law on limitation periods in West Malaysia, namely, the limitation period for actions on a judgment found in section 6(3) of the Limitation Act 1953. It will be demonstrated that the operation and effect of section 6(3) is not free legal conundrums and this may cause difficulties for litigants in Malaysia. This article will argue that the application of this statutory provision is complex and uncertain and therefore reform is unnecessary.

 

(2011) 38 (Special) JMCL

Challenges in the Handling of Procurement Complaints: Ghana’s Experience – A.B. Adjei

1

 

Abstract:
Before the coming into force of the current legislative and institutional framework, the laws and institutions regulating public procurement in Ghana were fragmented and uncoordinated. The Public Procurement Act has not only tried to harmonize these laws and procedures, it also created the Public Procurement Authority as a central body responsible for policy formulation and regulation of procurement in Ghana. Considering the historical background and the current state of affairs, there is bright hope for the future. This paper seeks to share with you the experiences of Ghana in the handling of procurement complaints under the Public Procurement Act, 2003 (Act 663). This Act is the primary legislation regulating government contracting in Ghana.

 

(2011) 38 (Special) JMCL

Goals of Public Procurement: A Fine Balancing Act for Malaysia – Cheong May Fong

9

 

Abstract:
Public procurement is used to achieve various objectives which can be broadly termed as economic and non-economic (secondary or collateral). From an economic perspective, efficient procurement should ensure value for money (VFM). Further by virtue of the public element in the procurement, another main aim is the avoidance of abuse in the procurement process. These two core objectives of VFM and avoidance of abuse are achieved through principles of Competition and Transparency. Public procurement can also be used as a policy tool for social and industrial objectives as is the position in Malaysia. Where public procurement is used to accomplish redistributive and developmental goals, it can bear aims, methodology and effects that may be in conflict with, and compromise the other core objectives of VFM and abuse of process. In Malaysia, a fine balance needs to be struck to obtain the full benefits of Government Procurement.

 

(2011) 38 (Special) JMCL

E-Procurement Adoption in the Context of Malaysian Public Sector: The Way Forward – Maniam Kaliannan

25

 

Abstract:
The edge of the Information Age, where information has become the cutting edge of global competition, has thrust the Information and Communication Technology (ICT) into the fore front of the national socio-economic development. ICT has been recognized as a strategic enabling tool to support the growth of the economy as well as enhance the quality of life of the population. The public sector in Malaysia is going through a period of rapid change. The government’s leading role in spearheading the surge forward into the information age has compelled the public sector to lead the way. The Government launched the Electronic Government (e-Government) initiative to reinvent itself to lead the country into the Information Age. Electronic Procurement or locally known as e-Perolehan was one of the projects that the government launched as part of the objective to reinvent the government in terms of service delivery through the use of ICT and to catalyze the successful development of the Multimedia Super Corridor (MSC) with ICT as one of the leading sectors of the economy. This paper examines the overall implementation of the e-Government initiative in Malaysia, with emphasis on the electronic procurement project known as e-Perolehan. E-Perolehan was started in the year 1999 and to date it has about 180,000 enabled suppliers, 2600 government agencies, six e-Perolehan modules and total transactions of more than RM11 billion. The general consensus amongst the buyer and seller communities is that e-Perolehan will become a catalyst towards a new and innovative procurement process within the Malaysian public sector. It is envisioned that within the next five years, more suppliers will grab the opportunity and benefit fully from the e-Perolehan initiative in Malaysia. Nevertheless, there are several issues that must be addressed by the relevant authorities to improve the procurement process in order to realise the objective of e-Perolehan system implementation.

 

(2011) 38 (Special) JMCL

Procurement Procedures under the Private Finance Initiative – Richard Craven

45

 

Abstract:
The EU regulates public procurement in order to open Member States’ markers in public contracts to EU-wide competition. Since the 1970s, it has done this through a series of harmonising directives; these essentially require Member States to implement rules providing for certain public contracts to be awarded in accordance with transparent and non-discriminatory procedures. In 2004 a new procedure was introduced: competitive dialogue. The new procedure is designed specifically with the procurement of complex contracts, such as contracts procured under the UK’s Private Finance Initiative, in mind. Prior to 2004, in the UK these contracts had been procured in a way that the European Commission perceived to lack transparency and competitive tension. The introduction of competitive dialogue seeks to remedy these problems. However, some writers have identified areas of legal uncertainty and areas in which the legal rules may potentially conflict with value for money procurement goals. The paper provides an overview of the new legal rules on competitive dialogue and the regulation of complex procurement in the UK.

 

(2011) 38 (Special) JMCL

Public Procurement Regulation in Bangladesh: A Preliminary Analysis – Ridwanul Hoque

63

 

Abstract:
Bangladesh’s public procurement law has sought to ensure transparency, accountability and fairness in government procurements. Whether its accountability-goal has been satisfactorily achieved is, however, a debatable issue. I will argue that the procurement rules are somewhat de-effected both by bureaucratisation and technical avoidance of the rules. On the other hand, the judiciary does not follow a robust review of public contracts. With this background in mind, I will analyse the Bangladeshi procurement laws and practices with a view to fathom ‘accountability’ in public procurements. I conclude by urging for simplified rules, more circumscribed administrative discretion, and a robust but principled judicial review of procurement decisions. This has been a theoretical study, based on primary and secondary sources of knowledge.

 

(2011) 38 (Special) JMCL

The Mauritian Experience – S Tahalooa

83

 

Abstract:
The Government of Mauritius initiated the first major reform in Public Procurement (that was successful) in 2006. The Public Procurement Act based on 1994 UNCITRAL Model Law was promulgated in January 2008. The implementation phase did not encounter any major hurdle. This may be due to the successful change management programme which was put in place. Furthermore, an extensive capacity building programme started since 2007 and continued in subsequent years. The contributions of the three institutions namely Procurement Policy Office, Central Procurement Board and Independent Review Panel, were instrumental to the smooth implementation of the new procurement legislation. In 2010, the government decided to undergo a second major reform in public procurement. The Institutional Structure (both at national and public body’s level) and Legal Framework are undergoing a complete review. The focus is also on professionalizing the procurement function. Specifically the reform focuses on: simplifying the procurement system, combatting corrupt practices, delivering cash and non-cash benefits and applying sustainable principles. e-Procurement, Sustainable Public Procurement, Framework Agreement and Life Cycle Costing are the key instruments that aim to achieve these objectives.

 

(2011) 38 (Special) JMCL

Integrity Pacts and Public Procurement Reform in India: From Incremental Steps to a Rigorous Bid-Protest System – Sandeep Verma

93

 

Abstract:
Integrity Pacts (IPs) have been adopted in a number of countries as an instrument for greater public oversight over possible corruption in government organisations, with application both in defence as well as in civilian purchases. In addition to their anti-corruption objectives, these pacts could also potentially enhance citizen participation in government contracting activities, while allowing dissatisfied bidders a forum in which to protest seemingly arbitrary and unfair agency actions. India has witnessed the introduction of these pacts in its public procurement regulations right since 2006; and with her joining recently as an observer to the plurilateral Agreement on Government Procurement, the need for a robust domestic review procedure for bidder grievances assumes an even greater importance. An in-depth examination of Integrity Pacts as legal tools for ensuring greater transparency and competition in the award of government contracts is yet to be conducted in India; and this paper aims to reduce the gap in academic research by undertaking a detailed examination of important dimensions of IPs as implemented in India. After a short analysis, it concludes with suggestions for strengthening and for transforming the IP mechanism into a tool for effective, comprehensive and independent oversight of domestic public contract-award decisions.

 

(2011) 38 (Special) JMCL

The Romanian Experience with Interim Measures and Automatic Suspension – Serban Filipon

137

 

Abstract:
Suspension of an award procedure, pending the review of a complaint lodged by an aggrieved tenderer before an independent review body, is a very important interim measure in procurement remedies. Such measure may prevent an aggrieved member from suffering further damage due to an unlawful act of a contracting authority, affecting the former’s chances of being awarded the contract in question. Suspension can also prevent a contracting authority from continuing an award procedure on an unlawful basis that might increase its liability in later litigation concerning the award procedure in question, or the awarded contract. However, depending on the moment when suspension starts (or ends), and on conditions that may trigger it, or otherwise, the practical implications are many folded. This article analyses the Romanian experience with its regulation of the suspension of an award procedure, from an immediate and automatic suspension of the award procedure as a result of lodgement of a complaint, to a non-automatic (voluntary) suspension. The article describes all the stages and shades to which suspension has been going through, from one extreme to the other, within the limits of the applicable EU rules, in just about four years. The article is a “snapshot” of suspension in the Romanian procurement system as at July 2010. Meanwhile, two other amendments to the Romanian procurement law were enacted, and they brought some further changes and clarifications to suspension, and to other procurement remedies issues. However, these amendments do not affect the analysis of the various forms of suspension and their practical implications, which remains fully up to date. In the near future, it is likely that forms of suspension, similar to those analysed by this article, become actual again. The Romanian experience may very well be relevant for other procurement contexts. 

 

(2011) 38 (Special) JMCL

Issues and Challenges of Accession to the GPA by Developing Economies: A Study of Thailand – Sirilaksana Khoman

169

 

Abstract:
The World Trade Organisation’s Agreement on Government Procurement (GPA) has been in effect since 1st January 1996. Its purpose was to open up the government procurement market as much as possible to international competition. However, developing countries have been reluctant to consider membership in the GPA mainly due to fear that the local industry would be adversely affected by foreign competition. This paper examines the existing laws, regulations, procedures and practices regarding government procurement in Thailand, comparing them with major features of the 2006 Revision of the GPA. It looks at current procurement problems in Thailand, and assesses whether membership in the GPA would help alleviate these problems. It concludes that greater transparency in government procurement would benefit Thailand, but preparatory steps are needed to determine Thailand’s comparative advantage and assist domestic suppliers to adjust during the transition.

 

(2010) 37 JMCL

A Singular Law: The Adoption of Pre-Colonial Statues in Commonwealth Countries has caused a Multi-Layered Legal Order and there is an Imperative to Enact a Civil Code for Uniformity and Certainty in the Constitution – Zia Akhtar

1

 

Abstract:
The Pakistani state adopted the Parliamentary model at its inception like many other countries that were governed by a codified common law. Its first constitution was the Government of India Act 1935 which it adopted as its framework. This has created a prerogative of powers for the executive which has often been the subject of abuse and abrogation of the constitution. The colonial era laws have been retained and the judicial status quo has not changed. The legal order is superimposed by additional layers of jurisprudence in the form of a Sharia law, regional courts laws and customary codes creating a Janus like legal system. In order to redress this ancient regime the jurisdictional question posed is can there be the creation of a civil code that is based on a one uniform law? The evaluation requires a comparison with Malaysia where the legal system also emanates from the British Parliamentary model. The analogy can be drawn and that has led to the derogation of power to a strong executive causing the denial of due process. By a process of evaluation it will be possible to reject the codified common law based on an outmoded constitution and to incorporate a framework in a civil code. This will inaugurate a civilised society that will achieve a rule of law that flows from a system that has expunged the fetters of the strong executive as grounded in the British constitution. This is an argument for a framework of a civil code that could promulgate a set of rules for a modern citizenship and identity that provides rights that are sui generis.

 

(2010) 37 JMCL

Satire and the Malaysian Law of Libel: Ummi Hafilda Bte Ali v Ketua Setiausaha Parti Islam Se Malaysia (PAS) & Ors – Abdul Majid bin Nabi Baksh, Rachael Elizabeth Kwan & Margaret Liddle

35

 

Abstract:
Satire makes fun of its butt by exaggerating and distorting its features. This makes it liable to claims in defamation. By and large, the common law has not accepted, in such defamation claims, the defence that the work complained of was not a bunch of lies about the plaintiff but a satiric work out to poke fun at the persons or issues which engage the satirist. This is illustrated by the judgement in Ummi Hafilda Bte Ali v Ketua Setiausaha Parti Islam Se Malaysia (PAS) & Ors

 

(2010) 37 JMCL

Dissolution of Marriage on the Grounds of Cruelty: A Comparative Overview of Fasakh and Irretrievable Breakdown of Marriage Principles – Noraini Md Hashim, Afridah Abas & Nora Abd Hak

85

 

Abstract:
In Islam, if a husband treats his wife with cruelty, either physically or mentally, she has the right to apply to the court for the marriage to be dissolved, on the grounds of fasakh. In Malaysia, the practice is that the Syariah Court will ask the wife to provide sufficient evidence to prove her claim, failure of which the application for fasakh will be set aside. In some cases, a Syariah Court demanded on a higher standard or proving the act of cruelty by the husband. For example, a Syariah Court had insisted on the requirement of two male witnesses, who saw the act of beating the wife. This has caused difficulty to the wife as it would not be easy for her to fulfil this requirement. Whilst, section 54(1)(b) of the Law Reform (Marriage & Divorce) Act, 1976, states that the plaintiff may petition for divorce on the grounds that the respondent has behaved in such a way and thus, the plaintiff cannot be reasonably be expected to live with the respondent. The act of cruelty of the respondent, either physically or mentally is more than adequate to the term “behaviour” as stated under the present divorce law. In the case of irretrievable breakdown of marriage, both objective and subjective tests have been used by the court to decide whether or not the plaintiff can reasonably be expected to live with the respondent in consequence of the respondent’s behaviour including cruelty. If it is proven, then the application for divorce will be granted by the court. The article examines the above issues relating the methods of proof and evidentiary requirement in cruelty cases. Relevant legal provisions as provided under the Malaysian laws i.e., the LRA 1976 and the Islamic Family Law / Enactments and the practice of the Malaysian courts deliberating this issue are the focus of the article. Decisions of the Syariah and Civil Courts on cruelty in divorce cases are analysed to highlight the practice in Malaysia.

 

(2010) 37 JMCL

Section 498, Penal Code (Act 574): An Antiquated Law? – Nor Aini Abdullah

101

 

Abstract:
The above article is about section 498 of the Malaysian Penal Code. Section 498 reads … “Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both …”. It is about an archaic offence which entails in depriving the husband of his proper control over his wife for the purpose of illicit intercourse. Any disposition or consent or willingness on the part of the wife is perfectly immaterial to the guilt of the accused. Thus the literature of this article revolves around this antique provision; and how not or whether not to abolish it or maintain or amend it.

 

(2010) 37 JMCL

The Occupational Safety and Health Law in Malaysia: The Way Forward – Siti Zaharah Jamaluddin

115

 

Abstract:
The Occupational Safety and Health Law is an important aspect of industrialisation. Malaysia has recognized its importance by enacting Ordinances way back before it obtained its independence. Changes were made to the Ordinances and the Acts to suit the needs of the growing nation. Starting with a very prescriptive and technical Ordinances and Statute, Malaysia subsequently adopted a Statute that emphasises on self-regulation, consultation and cooperation between the relevant parties with the introduction of the Occupational Safety and Health Act 1994. This article was aimed to look at the existing legal framework which governs the occupational safety and health law in Malaysia, its problems and how Malaysia can move forward in the future.

 

(2009) 36 JMCL

Legislation

1

 

n/a

 

(2009) 36 JMCL

Malaysian Administrative Law at the Crossroads: Quo Vadis? – Dr. Gan Ching Chuan

13

 

Abstract:
Malaysian Administrative Law was, until 1996, thought to be based solely on common law by concerning itself mainly with challenging the decision-making process of the administrators. In the landmark case of Tan Tek Seng in January 1996, the Court of Appeal began to invoke the doctrine of constitutional review by breathing life and great expectations into the broad and liberal interpretation of fundamental rights in the constitution whenever they are at stake as a result of governmental actions or decisions whether legislative or executive. However, the constitutional euphoria of broad interpretation was short lived as the Federal Court swiftly and decisively struck back with vengeance in Ng Hock Cheng, Sugumar Balakrishnan, and Kekatong thereby throwing constitutional review into grave doubt. Constitutional review, however, made a brief comeback in 2009 in a few Federal Court cases when the judge behind the broad interpretation of the Federal Constitution was elevated to the Federal Court. But with his retirement and departure from the Bench on 16th February 2010, the development of Administrative Law again encountered problems because very few judges have come forward to push the constitutional agenda in our public law. The writer has expounded his view into the root causes of the unsatisfactory growth and development of Malaysian Administrative Law over the last fifty-one years. However, the writer remains upbeat and hopeful over the faith and future of Malaysian Administrative law in the years ahead because of his firm belief in the rule of law and constitutionalism which will eventually triumph over time so long as the struggle to vindicate the rule of law and constitutionalism continues unabated.

 

(2009) 36 JMCL

The Malaysian Contracts Act 1950: Some Legislative and Judicial Developments Towards a Modern Law of Contract – Cheong May Fong

53

 

Abstract:
The Malaysian Contracts Act 1950, modelled on the Indian Contract Act 1872, has encapsulated contract law tenets of English nineteenth-century laissez faire market capitalism, freedom of contract and classical contract law. Through time, however, new forces have challenged the traditional views of contract law, supported by legislative reforms and judicial developments. The shift from classical to modern contract law has been taken cognisance of and is generally accepted in the common law world. This essay, however, aims to show this movement in Malaysian contract law as provided in the Contracts Act 1950 and as interpreted by the Malaysian courts. It evaluates whether and to what extent values of modern contract law, such as fairness and justice, have influenced the law, and analyses the main theme of vitiation of free consent in the Contracts Act 1950 through the doctrines of unconscionability, undue influence and coercion. Reference will also be made to the law in the United Kingdom and other Commonwealth countries. The essay concludes by exploring the roles of legislative reform and judicial interpretation in developing Malaysian contract law, as embodied within classical law concepts in the Contracts Act 1950, towards a modern law of contract.

 

(2009) 36 JMCL

Removal of Company Directors in Malaysia: Section 128 of the Companies Act 1965 and Associated Case Law Revisited – S.T. Lingam, Sri Rama

81

 

Introduction:
One of the potent powers of the members of a public4 company in Malaysia is their ability to remove the directors of their company by an ordinary resolution. The potency of the power may be demonstrated by the fact that the power extends to removing a director appointed to represent the interests of a particular class of shareholders or debenture holders (although such a removal shall not take effect until the successor of the removed director has been appointed).5 The functional utility of the power is not restricted to removing dishonest and incompetent directors. Indeed there is no requirement in the Companies Act 1965 or in case law for those seeking to remove a director of a public company by a resolution at a general meeting to give reasons for their proposed resolution; neither can a director demand the reasons for his removal.6 The power of removal is important as it is a weapon of members against recalcitrant directors who act in disregard of members’ aspirations as to how the company should be managed. In this context, it is usual for modern companies to have a regulation in their articles of association designed to make management the sole domain of the board, and consequently, to make it difficult for members to challenge board decisions.7

 

(2009) 36 JMCL

The Role of Auditors in the Banking Sector – Loganathan Krishnan

99

 

Abstract:
The term ‘auditor’ originates from the expression ‘auditor’, which in Latin means ‘to listen’. Nevertheless when one scrutinises the duties of auditors, he will realise that auditors do not merely listen. They examine companies’ accounts and submit reports. These duties have augmented over recent years due to changing corporate atmosphere enveloping the business world including the banking sector. Thus this study reassesses auditors’ duties as there are specific laws governing auditors in the banking sector. The study examines whether the laws are adequate in ensuring that auditors are effective watchdogs. A comparative study is also carried out to investigate auditors’ duties in the non-banking sector. Essentially corporate law must ensure the interests of all stakeholders are well balanced with the challenging role of auditors.

 

(2008) 35 JMCL

Consumer Protection against Unauthorised Use of Credit Cards in Malaysia: A Banking Law Perspective – Kalavathy Maruthavanar

1

 

Abstract:
This article examines protection afforded to consumers in the credit card industry with reference to guidelines issued by Bank Negara that govern ‘unauthorised use’ of credit cards in Malaysia. The first consumer protection guideline that governs plastic cards as well as other forms of electronic transactions (excluding internet banking) is ‘BNM/GP 11’. The article discusses the scope of protection offered by the aforesaid guideline to credit card holders. However it is an omnibus guideline as it covers all forms of electronic transactions and not designed specifically for credit card usage. Another guideline analysed is the more recent guideline known as Credit Card Guidelines (BNM/RH/GL014-1), which is specifically designed for credit card usage in Malaysia. The credit card industry uses the Credit Card Guidelines (BNM/RH/GL014-1) as the standard to be implemented for credit card usage in Malaysia. The only set back in its implementation, has been the controversy as to whether such a guideline has the force of law.

 

(2008) 35 JMCL

The Present Parameters of Promissory Estoppel and Its Changing Role in the English, Australian and Malaysian Contract Law – Wan Izatul Asma Wan Talaat

39

 

Abstract:
As an equitable doctrine, promissory estoppel traditionally operates to prohibit a contracting party from going back on his earlier promise to suspend or alter his contractual right on the promise, who has detrimentally acted in reliance on such promise. Nevertheless, the continuing evolution of this doctrine after its formal promulgation in 1947b through the High Trees case has led to the changing role of promissory estoppel in contract law. It is presently being applied more flexibly through the compromise made on four of its traditional limitations, which have affected its parameters and resulted in the following phenomenon – the use of promissory estoppel as a sword; the negation of pre-existing contractual relationship; the less stringent requirement of unconscionability in lieu of detrimental reliance; and its extinctive effect. This paper comparatively speaks on the changing role of promissory estoppel in contract law due to its continuing evolution in three common law countries, namely England, Australia and Malaysia.

 

(2008) 35 JMCL

Choice of Law, Forum and Procedure in Conflict of Laws in Transnational and Cross-Border Commercial Disputes: Are Kenyan Judicial Decisions Veering Off to the Sidewalk? – Gilbert Nyamweya

89

 

Abstract:
This article attempts to unravel the mystery surrounding the interpretation of choice-of-law, choice-of-forum and choice-of-procedure clauses in international trade. Most international contracts contain these clauses. The occurrence of disputes in these contracts is inevitable owing to the exigencies that pervade the environment in which they are performed. It is upon the backdrop of this stark reality that such contracts invariably incorporate dispute resolution mechanisms which take the shape of jurisdiction, choice-of-law, and procedural clauses. How courts interpret these clauses determines how parties define their affairs within the text of their contracts. The determination by courts as to which law or procedure is to apply or which country’s courts have jurisdiction often makes a significant difference in the determination of the substantive rights and obligations of the parties. The analysis of the approach and rhythm of courts around the world in the rigours of the application and interpretation of these clauses is, therefore, the propelling force behind this article. The analysis of Kenya’s judicial decisions have, in the hope of bringing to the fore Kenyan courts’ approach in the arena of private international contract law, have been considered along with judicial decisions from other jurisdictions.

 

(2008) 35 JMCL

Harmonisation of Shari’ah, Common law and Customary Law in Nigeria: Problems and Prospects – Abdulmumini A Oba

119

 

Abstract:
Law in Nigeria is traceable to three distinct legal traditions namely customary law, Islamic law and the English common law. These laws often differ irreconcilably in substantive law, procedural law, concepts of justice, and worldviews. The colonial administration ensured the ascendancy of the common law in the country but the movement in support of Islamic law has remained very strong. Thus, there exist a lot of tensions within the Nigerian legal system. Various approaches have been suggested to resolve these conflicts. Some have suggested a unification of the three systems of law. Others, towing the colonial policy want the specialist courts administering Islamic and customary laws abolished. The biggest obstacle to unification of laws in Nigeria is that Islam does not permit for Muslims a hybrid law out of Islamic law and any other law. Muslims have argued in favour of a clear separation of Islamic law from common law and for the establishment of a parallel system of courts from the lowest to the highest court to deal with each of the three laws in the country. This parallel system of courts has many challenges and there may still be a case for administering Islamic law by specialists within a unified courts system. Law in Nigeria took a new turn in 1999 with the adoption of Islamic law as the basic law in many States in northern Nigeria. The changes introduced Sharia Penal Codes and Sharia Courts. Non-Muslims are not subject to Islamic law. The major obstacles to these reforms include constitutional limits, Muslim themselves, and non-Muslims both on the national and international fronts. Muslims must therefore show more commitment and dedication to the cause of Islamic law if they want to see full-fledged Islamic law entrenched firmly in the country.

 

(2008) 35 JMCL

On Modernity, Democracy, and Secularism: Reflections on the Malaysian Experience – Alima Joned

147

 

Abstract:
As a myriad of challenges confront today’s Muslims, some modernists believe the solution lies in democracy. However, they are divided on the strategy of making democracy take root in Muslim countries. Inspired by Turkey, a number of modernists call for the secularisation of the political system. Specifically, they propose that Islam is confined to a private creed, without legal, political, or economic influence in the government. Some even take a position that secularism is the sine qua non of democracy and modernity. This article is a reaction to this proposition by reflecting on Malaysia’s experience with democracy and modernisation. As background, the article discusses briefly the ongoing debate on the compatibility of Islam and democracy. It then looks at Art 4 of the Malaysian Constitution to assess the extent to which Malaysia can be called a secular state before concluding that the Malaysian system is a mixed one where, as a matter of constitutional law, Malaysia is a parliamentary democracy with strong secular and Islamic institutions. In discussion that follows, the article offers analysis of several of the reasons why secular and Islamic traditions have enjoyed a peaceful co-existence. The article also evaluates measures put in place by the Malaysian Government to counter the growing appeal of political Islam during the 1980s that threatened the delicate balance between the secular and the religious. The article concludes by outlining some of the new challenges confronting Malaysia that must be addressed before the Malaysian system can mature as a viable alternative to the unbridled secularism of Turkey.

 

(2008) 35 JMCL

Kepentingan dan Perkembangan Hak untuk Mendapatkan Peguam Semasa Siasatan dalam Sistem Perundangan Jenayah di Malaysia – Zulazhar bin Tahir

167

 

Abstrak:
Hak untuk mendapatkan peguam adalah hak yang amat penting dalam sesuatu perbicaraan jenayah. Oleh yang demikian, Art 5 (3) Perlembagaan Persekutuan membenarkan seseorang yang ditangkap untuk berhubung dengan peguam pilihannya. Namun begitu, sebelum wujudnya Akta A1274, secara amalannya hak seseorang yang ditangkap tersebut bermula semasa beliau ditangkap tetapi tidak boleh dikuatkuasakan serta-merta. Selalunya, hak ini hanya diberikan selepas berakhirnya siasatan yang dijalankan oleh pihak berkuasa. Hak ini juga selalunya akan diketepikan atas alasan kehadiran peguam akan mengganggu proses siasatan yang sedang dijalankan. Malahan melalui keputusan-keputusan kes juga menunjukkan bahawa mahkamah turut bersetuju dengan apa yang berlaku. Akibat daripadanya, sering kali berlaku kes-kes kekasaran semasa siasatan terhadap tertuduh. Bagi mengelakkan daripada berlakunya kejadian-kejadian sebegini maka Akta A1247 telah diperkenalkan dengan harapan agar hak-hak seseorang yang ditangkap akan lebih terjamin. Artikel ini akan melihat perkembangan di Malaysia sebelum dan selepas pindaan. Selain daripada itu, kepentingan mengapa hak untuk mendapatkan peguam ini harus diberikan kepada tertuduh semasa ditangkap juga akan dibincangkan.
Abstract:
(Right to counsel is one very important right of an accused person in a criminal trial. Hence, Art 5 (3) of the Federal Constitution allows a person arrested to have access to a counsel of his choice. Nevertheless, before the enactment of Act A1274, as a common practice, this right of a person under arrest, even though arises at the time of arrest, it is not given until the end of investigation by the authority. This right is also usually sidestepped on the ground that presence of counsel may interfere with the investigation process. Court decisions have also seemed to support the practice. Consequently, violence often happens during investigation. In order to avoid such happenings, Act A1247 was introduced with the hope that right to counsel of a person arrested would be safeguarded. This article looks at the development of this right in Malaysia before and after the said amendment. The importance of the right is also discussed.)

 

(2008) 35 JMCL

List of Legislation

193

(2007) 34 JMCL

International Law in Crisis: Reaffirming the Rule of Law in a Divided World – Herbert V Morais

1

(2007) 34 JMCL

Statutory Recognition of Native Customary Rights under the Sarawak Land Code 1958: Starting at the Right Place – Ramy Bulan

21

(2007) 34 JMCL

Legal Issues Concerning the Transsexual Community in Malaysia – Sridevi Thambapillay

85

(2007) 34 JMCL

The Public Authorities Protection Act 1948 – A Case for Repeal – Sujata Balan

127

(2007) 34 JMCL

The Red-Ink Grant: Tracing Legitimacy in History – Bashiran Begum Mobarak Ali

159

(2007) 34 JMCL

Money Laundering: Civil Liability at Common Law and in Equity – Michael Brindle QC

185

(2007) 34 JMCL

The Doctrine of Natural Justice as an Arm of the Rule of Law in Nigeria – Muhtar Adeiza Etudaiye

195

(2007) 34 JMCL

List of Legislation

219

(2006) 33 JMCL

The Radical Transformation Of Company Law – Global Trends And Local Initiatives – John H Farrar

1

(2006) 33 JMCL

Constitutionalism – Concept and Application in the Federal and State Governments of Malaysia – Johan S Sabarudin

27

(2006) 33 JMCL

Charges over Book Debts – Implications of Spectrum Plus – Teh Wei Wei

71

(2006) 33 JMCL

Consulting the Conference of Rulers under the Federal Constitution – Dato’ Cyrus Das

95

(2006) 33 JMCL

Rights and Liabilities of Scholars and Scholarship Authorities for Breach of Scholarship Agreements under the Contracts (Amendment) Act 1976 – Sujata Balan

117

(2006) 33 JMCL

Section 95(2) of the Street, Drainage and Building Act 1974: The Highland Towers’ Decisions – The Guardian or the Guarded? – Faizah Nazri binti Abd Rahman

145

(2006) 33 JMCL

List of Legislation

163

(2005) 32 JMCL

The Judicial Power And Constitutional Government – Convergence And Divergence In The Australian And Malaysian Experience – Hp Lee

1

(2005) 32 JMCL

Protection Of Expressions Of Folklore/Traditional Cultural Expressions: To What Extent Is Copyright Law The Solution? – Kuek Chee Ying

31

(2005) 32 JMCL

After Adong: The Emerging Doctrine Of Native Title In Malaysia – Peter Crook

71

(2005) 32 JMCL

The Beginning And End Of The Life Cycle – Dame Elizabeth Butler-Sloss Gbe

99

(2005) 32 JMCL

Karunairajah A/L Rasiah V Punithambigai A/P Ponniah: The Need To Amend Section 95 Of The Law Reform (Marriage And Divorce) Act 1976? – Sridevi Thambapillay

109

(2005) 32 JMCL

Akta Kanak-Kanak 2001: Penguatkuasaan Semula Tugas Dan Tanggungjawab Ibu Bapa Atau Penjaga? – Jal Zabdi Bin Mohd Yusoff & Zulazhar Bin Tahir

129

(2005) 32 JMCL

List Of Legislation

151

(2004) 31 JMCL

Human Rights And The Rule Of Law: Memories And Reflections – Lord Lester Of Herne Hill Qc

1

(2004) 31 JMCL

Copyright Law In Malaysia: Does The Balance Hold? – Khaw Lake Tee

23

(2004) 31 JMCL

Damages For Personal Injuries And Causing Death: A Critical Survey – Dato’ P Balan

45

(2004) 31 JMCL

Jurisdiction Over A Person Abducted From A Foreign Country: Alvarez Machain Case Revisited – Abdul Ghafur Hamid @ Khin Maung Sein

69

(2004) 31 JMCL

Law And Ethics In The Malaysian Insurance Industry – A Review Of Selected Practices – Nurjaanah Abdullah @ Chew Li Hua

87

(2004) 31 JMCL

The Distribution (Amendment) Act 1997 – Amendments To Section 6 Of The Distribution Act 1958 – Sujata Balan & Yong Chiu Mei

107

(2004) 31 JMCL

List Of Legislation

133

(2003) 30 JMCL

Positive Rights In The Constitution? – Jayanthi Naidu

1

(2003) 30 JMCL

The Political Economy Of Constitutional Reform In An Externally-Constrained Environment: China’s Shadow Over Hong Kong And Strategies To Minimise It – Miron Mushkat & Roda Mushkat

15

(2003) 30 JMCL

United States Supreme Court Politics: Focus On Steven’s And Other Justices’ Longevity – Myint Zan

37

(2003) 30 JMCL

Riding On The Winds Of Change: Transforming Marine Warranties Into Lesser Contractual Terms – Sri Ganesan

51

(2003) 30 JMCL

Treaty-Making Power In Federal States With Special Reference To The Malaysian Position – Abdul Ghafur Hamid

65

(2003) 30 JMCL

Immunity Of The Advocate And Solicitor – Vivien Chen

89

(2003) 30 JMCL

Duties Of Insurance Intermediaries: Confronting The Issues – Nurjaanah Abdullah @ Chew Li Hua

109

(2003) 30 JMCL

Stateless And Abandoned: The Foundling In Malaysia – Vivien Chen

119

(2003) 30 JMCL

Kes Pemecatan Tertunggak Di Mahkamah Perusahaan: Adakah Penyelesaiannya Dengan Meminda Akta Perhubungan Perusahaan 1967? – Siti Zaharah Jamaluddin

137

(2003) 30 JMCL

Mahkamah Syariah Selepas 16 Tahun Kemasukan Artikel 121(1a) Perlembagaan Persekutuan – Zulazhar Tahir

149

(2003) 30 JMCL

List Of Legislation – Mukhtiar Kaur

161

(2002) 29 JMCL

Akta Kanak-Kanak 2001: Kesannya Terhadap Undang-Undang Keluarga – Sridevi Thambapillay

1

(2002) 29 JMCL

Assignments In Insurance Law – A. Vijayalakshmi Venugopal

19

(2002) 29 JMCL

Backwards And Forwards – R.H. Hickling

67

(2002) 29 JMCL

The Role Of Credit Rating Agencies In Malaysia – Badariah Sahamid

83

(2002) 29 JMCL

“Interfaces Between Intelectual Property, Traditional Knowledge, Genetic Resources And Folklore: Problems And Solutions” – Lakshman Kadirgamar

97

(2002) 29 JMCL

Limitation Of Liability And Third Parties – Berry, Brian

131

(2002) 29 JMCL

Modernisation And Reform Of Corporate Law Amidst The Influence Of Globalisation And The Development In Information Technology – Tie Fatt Hee

159

(2002) 29 JMCL

Notis Konstruktif & Kaedah Dalam Royal British Bank V Turquand – P. Balan, Talat Mahmood, Ahmad Saufi Abdul Rahman

177

(2002) 29 JMCL

Securities Property In The Philippines: A State Common Law Imbroglio – Ong And Pm Spink

201

(2002) 29 JMCL

The European Union’s Conflict Of Law Rules Governing Contract Law: A Re-Evaluation In The 21st Century – Murat M. Hakki

243

(2002) 29 JMCL

Towards A Personal Data Protection Regime In Malaysia – Khaw Lake Tee

255

(2002) 29 JMCL

Who Is The Ultimate Planning Authority In Malaysia? Reviewing The Powers And The Role Of The Appeal Board – Lee Lik Meng

283

(2002) 29 JMCL

List Of Legislation – Mukhtiar Kaur

305

(2001) 28 JMCL

The Development Of Ombudsman – Sir David Yardley

1

(2001) 28 JMCL

Evolution Of A New Financial Architecture Through The Liberalisation Of Financial Services – Tie Fatt Hie

9

(2001) 28 JMCL

Section 150(1) Of The Insurance Act 1996 – Its Intended Application And A Case For Further Reform – Anil Joshi A/L Hari Chand

29

(2001) 28 JMCL

Directors’ Self-Dealing And The Companies Act, 1965 – Vivien J.H. Chen

45

(2001) 28 JMCL

The Right To Time For Worship – International Conventions And The Practice In England, America And Nigeria – A.A. Oba

69

(2001) 28 JMCL

The Warsaw Convention 1929 – Limitation Of The Air Carrier Liability In Death And Personal Injury Of The Passenger – Mohd Bahrin Othman

87

(2001) 28 JMCL

Environmental Law – The Islamic Perspective On The Environment – Azmi Sharom

101

(2001) 28 JMCL

A Critique On The Concept Of Sustainable Development – Amy Ng Sing Fuay

115

(2001) 28 JMCL

Contracts (Rights Of Third Parties) Act 1999 – Legislative Reform Of The Doctrine Of Privity In The United Kingdom – Chan Wai Meng

137

(2001) 28 JMCL

Staunch Ships – Due Diligence Equals Absolute Obligation? – Faizah Nazri Abdul Rahman

161

(2001) 28 JMCL

Relevance Of Partnership Principles In Company Law – Winding-Up On The ‘Just And Equitable Ground’ – Mohd Rizal Salim

169

(2001) 28 JMCL

Violence Against The Wife – Protection Available Under The Domestic Violence Act 1994 – Jal Zabdi Mohd Yusoff

177

(2001) 28 JMCL

List Of Legislation – Mukhtiar Kaur

193

(2000) 27 JMCL

Construction Of Commercial Contracts: Strict Law Or Common Sense – The Rt Hon Lord Clyde, Pc

1

(2000) 27 JMCL

The Law Of Defamation In The New Millenium – F.A. Trindade

23

(2000) 27 JMCL

Rule Of Law In The Merdeka Constitution – Khoo Boo Teong

59

(2000) 27 JMCL

Judicial Activism Or Constitutional Obligation: Study Of The Indian Supreme Court’s Guidance For Standards In Public Life – D. Shanmuganathan

103

(2000) 27 JMCL

The Protection Of Geographical Indications In Malaysia – Tay Pek San

121

(2000) 27 JMCL

Corporate Governance And The Re-Emergence Of A Director’s Duty In Negligence In Malaysia – Anil Joshi A/L Hari Chand

147

(2000) 27 JMCL

Remote Sensing: Capabilities And Legal Issues – Mohd Bahrin Bin Othman

163

(2000) 27 JMCL

Banking Laws In Malaysia: The Path To The Future – Kalavathy Maruthavanar

181

(2000) 27 JMCL

The Companies Act 1965: Some Recent Amendments – Chan Wai Meng

207

(2000) 27 JMCL

The End In Sight – R.H. Hickling

231

(2000) 27 JMCL

The Contract Of Employment, Knowledge Workers, And The “K-Economy” – Sharifah Suhanah Syed Ahmad

245

(2000) 27 JMCL

Miah V Khan: Penetapan Beberapa Prinsip Mengenai Kewujudan Perkongsian – Choong Yeow Choy

257

(2000) 27 JMCL

Equity In Construction Law – New Malaysian Directions: The Radio & General Trading Co. Sdn Bhd V Wayss & Freytag (M) Sdn Bhd – J. Arthur Mcinnis

269

(2000) 27 JMCL

Akta Bahasa Kebangsaan 1963/67: Perisytiharan Tanpa Taring – Johan Shamsuddin Sabaruddin

281

(2000) 27 JMCL

Kes Silverstone Marketing Sdn Bhd V Hock Ban Hin Trading Sdn Bhd Dan Penerimaaan Fasal ‘Automatic Crystallisation’ Di Malaysia – Ahmad Saufi Abdul Rahman

289

(2000) 27 JMCL

Seksyen 10 Akta Keganasan Rumahtangga 1994 Lwn. Seksyen 426(1) Kanun Prosedur Jenayah – Jal Zabdi Bin Mohd Yusoff

305

(2000) 27 JMCL

Unvanquished: A U.S.-U.N. Saga – Myint Zan

313

(2000) 27 JMCL

List Of Legislation

327

(1999) 26 JMCL (Part 2)

Introduction – Ramy Bulan

1

(1999) 26 JMCL (Part 2)

Claimability Of Illegal Earnings In Tort: A Perpetual Case For Equity To Intervene – Muhammad Altaf Hussain Ahangar

3

(1999) 26 JMCL (Part 2)

The Concept Of Implied License To Use – Is There Room For Equitable Estoppel By Conduct? – Ida Madieha Abd. Ghani Azmi

9

(1999) 26 JMCL (Part 2)

Estoppel In The Irish Courts – The Ebb And Flow Of Unconscionability: Recent Developments – Oonagh Breen

29

(1999) 26 JMCL (Part 2)

The Detriment Element And The Reinterpretation Of The Equitable Estoppel Doctrine In Malaysia – Ramy Bulan

49

(1999) 26 JMCL (Part 2)

Estoppel In Boustead’s Case: A Move Away From Reliance Towards Unconscionability – Cheong May Fong

71

(1999) 26 JMCL (Part 2)

Enforcing Broken Promises In Equity: Estoppel In Australia, Malaysia And Beyond – James Edelman

79

(1999) 26 JMCL (Part 2)

The Use Of Estoppel In The Sale Of Goods – Gan Ching Chuan

97

(1999) 26 JMCL (Part 2)

Equitable Estoppel: Is ‘Palm Tree Justice’ Back? – Mary George

105

(1999) 26 JMCL (Part 2)

The Limits To Estoppel: Flexibility And Unconscionability – Nicholas Hopkins

133

(1999) 26 JMCL (Part 2)

The Communications And Multimedia Act 1998: Room For Estoppel? – Safinaz Mohd. Hussein

145

(1999) 26 JMCL (Part 2)

Estoppel And Illegal Contracts – Ben Kremer

149

(1999) 26 JMCL (Part 2)

The Development Of Promissory Estoppel – Ali Mohammad Matta

161

(1999) 26 JMCL (Part 2)

Estoppel And Substantive Legitimate Expectation – Parallel Doctrines In Public Law? – Sudha D/O C. K. G. Pillay

171

(1999) 26 JMCL (Part 2)

Estoppel In The Law Of Banking And Negotiable Instruments – Badariah Sahamid

195

(1999) 26 JMCL (Part 2)

Pengurusan Danaharta Nasional Berhad – A Case For Imposing Fiduciary Duties On The Special Administrator – Mohammad Rizal Salim

205

(1999) 26 JMCL (Part 2)

Land Contracts And Estoppel: Relief Where None Should Be Granted? – Judith Sihombing

217

(1999) 26 JMCL (Part 2)

Equitable Estoppel: Unpacking A Doctrine – Sarah Worthington

227

(1999) 26 JMCL (Part 2)

Case Note: Res Judicata In The Malaysian Syariah Court With Special Reference To The Case Of S Osman Bin S Karim & Another V Ak Othman Shah Bin Pg Mohd Yussof & Another – Noor Inayah Yaakub

247

(1999) 26 JMCL (Part 2)

Case Note: Berjasa Information System Sdn. Bhd. V Tan Gaik Leong (T/A Jurukur Berjasa) & Anor. – Zinatul A. Zainol

253

(1999) 26 JMCL (Part 1)

Certainty And Justice: The Demands On The Law In A Changing Environment – The Right Honourable Lord Nolan

1

(1999) 26 JMCL (Part 1)

Police Powers: Use And Misuse – Mimi Kamariah Majid

17

(1999) 26 JMCL (Part 1)

Dispute Settlement And Compromise: The Need For An Uncompromising Stand – Choong Yeow Choy

85

(1999) 26 JMCL (Part 1)

Malaysian Administrative Law: A Review Of The Post-Uem Developments – Gan Ching Chuan

119

(1999) 26 JMCL (Part 1)

The New And Multi-Faceted Dimensions Of Articles 5 And 8 Of The Federal Constitution In The Control Of Administrative Action – Sudha D/O C. K. G. Pillay

157

(1999) 26 JMCL (Part 1)

Contributory Negligence In Fatal Accident Claims – P. Balan

179

(1999) 26 JMCL (Part 1)

International Security, The United Nations And The Post-Cold War Era – H. Mccoubrey And J. C. Morris

193

(1999) 26 JMCL (Part 1)

Terma Dan Syarat Kontrak Pekerjaan Pekerja Kanak-Kanak Dan Orang Muda: Terlindungkah Mereka Di Sisi Undang-Undang? – Siti Zaharah Jamaluddin

213

(1999) 26 JMCL (Part 1)

The Duties Of Controlling Shareholders – The Agenda For Reform – Mohammad Rizal Salim

227

(1999) 26 JMCL (Part 1)

Appeal From The High Court To The Court Of Appeal Against A Bail Decision: Dato’ Seri Anwar Ibrahim V Public Prosecutor – Mimi Kamariah Majid

251

(1998) 25 JMCL (Special Issue)

Introduction – Ramy Bulan And Peter Crook

1

(1998) 25 JMCL (Special Issue)

Customary Law As An Aspect Of Legal Pluralism: With Particular Reference To British Colonial Africa – Lakshman Marasinghe

7

(1998) 25 JMCL (Special Issue)

The Ritual Aspects Of Customary Law In Sarawak With Particular Reference To The Iban – Jayl Langub

45

(1998) 25 JMCL (Special Issue)

To Hear Is To Obey: Oral Traditions And Changing Notions Of Law Among The Maisin Of Papua New Guinea – John Barker

61

(1998) 25 JMCL (Special Issue)

Administration Of Native Courts And Enforcement Of Native Customary Laws In Sarawak – Empeni Lang

89

(1998) 25 JMCL (Special Issue)

Indigenous Identity And The Law: Who Is A Native? – Ramy Bulan

127

(1998) 25 JMCL (Special Issue)

Orang Asli Identity In The Nation-State – Zawawi Ibrahim

175

(1998) 25 JMCL (Special Issue)

Settler States And Customary Law – Douglas Sanders

189

(1998) 25 JMCL (Special Issue)

Native Customary Rights Over Land In Sarawak – Francis Johen Adam

217

(1998) 25 JMCL (Special Issue)

Native Customary Land Rights In Sabah – Juprin Wong-Adamal

233

(1998) 25 JMCL (Special Issue)

The Use Of Customary Law To Protect The Cultural Practices Of Indigenous Peoples In Hawai’i – C. Michael Hare

241

(1998) 25 JMCL (Special Issue)

Legal Devices To Manage Customary Maori Land: Overcoming The Conflict Between Retention And Development – Tanira T. Kingi And C. William Maughan

253

(1998) 25 JMCL (Special Issue)

Chinese Customary Law In Hong Kong – Judith Sihombing

269

(1998) 25 JMCL (Special Issue)

Charitable Trusts As A Device For Indigenous Peoples To Merge And Develop Customary Land – C. Michael Hare

309

(1997) 24 JMCL

The Changing Face Of Employment Protection – Rw Rideout

1

(1997) 24 JMCL

Doktrin Ultra Vires Dan Seksyen 20 Akta Syarikat 1965 – P. Balan & Talat Mahmood

27

(1997) 24 JMCL

Part Xiii Of The Insurance Act 1996: Payment Of Policy Money Under A Life Insurance Policy Or Personal Accident Insurance Policy – Rafiah Salim

55

(1997) 24 JMCL

Ombudsmen In The United Kingdom – Sir David Yardley

87

(1997) 24 JMCL

A Primer On The English Law Of Set-Off – Michael Bridge

97

(1997) 24 JMCL

Credit Cards: A Boon Or Bane For The Customers – D.K. Srivastava

143

(1997) 24 JMCL

The “Guilty Mind” In The Criminal Law – Sir John Smith

167

(1997) 24 JMCL

Non-Disclosure – Gan Ching Chuan

185

(1997) 24 JMCL

Index To Legislation

197

(1996) 23 JMCL

The Eleventh Sultan Azlan Shah Lecture 1996 – Contract Law: Fulfilling The Reasonable Expectations Of Honest Men – The Right Honourable Lord Steyn

1

(1996) 23 JMCL

Does A Capital Gains Tax Work? The Australian Experience Eleven Years On – Duncan Bentley

13

(1996) 23 JMCL

Natural Justice And The Constitution: Recent Cases From The Court Of Appeal – Peter S Crook

37

(1996) 23 JMCL

Human Tissues Act, 1974 – The Present And The Future – Shamsiah Begum Syed Ismail

57

(1996) 23 JMCL

Infringement Of Trade Marks Under The Trade Marks Act 1976 – Tay Pek San

79

(1996) 23 JMCL

Section 59 Industrial Relations Act 1967 – The Forgotten Remedy – Sharifah Suhana Syed Ahmad

95

(1996) 23 JMCL

List Of Legislation

107

(1995) 22 JMCL

The Seventh Tun Abdul Razak Memorial Lecture 1996: Human Rights And Economic Development – Justice Michael Kirby

1

(1995) 22 JMCL

Controlling The Use Of Parliamentary History – Jim Evans

17

(1995) 22 JMCL

Compensation For Lost Services In A Dependency Claim – P Balan

71

(1995) 22 JMCL

Malaysian Administrative Law: Recent Case Law Development – Cc Gan

81

(1995) 22 JMCL

Tang Kong Meng V Zainon Bt Md Zain: A Case Decided But Not Resolved – Nor Aini Abdullah

91

(1995) 22 JMCL

List Of Legislation

97

(1994) 21 JMCL

The Universities (Discipline Of Staff) Rules: An Administrative Law Perspective – Cc Gan

1

(1994) 21 JMCL

Discipline Of Staff In The University Of Malaya: The Nemo Judex Rule And The Universities And The Universities College Act 1971 – Abdul Majid

45

(1994) 21 JMCL

Duties Of Receiver And Manager – Samsar Kamar Bin Hj Ab Latif

63

(1994) 21 JMCL

Democracy And The Sultanate System In Malaysia – The Role Of The Monarchy – Cyrus V Das

97

(1994) 21 JMCL

Implied Trusts And Illegality: How Clean Is Clean? – Ramy Bulan

117

(1994) 21 JMCL

Depending On The Dependency Claim – P Balan

157

(1994) 21 JMCL

Akta Keselamatan Dan Kesihatan Pekerjaan 1994 – Satu Ulasan – Siti Zaharah Jamaluddin

169

(1994) 21 JMCL

The Criminal Procedure Code: Some Recent Amendments – Talat Mahmood Abdul Rashid

181

(1994) 21 JMCL

Mental Disorders And The Law By Kok Lee Peng, Molly Cheang And Chee Kuan Tsee – Norchaya Talib

199

(1994) 21 JMCL

Index To Legislation

209

(1993) 20 JMCL

Commercial Fraud Trials: Some Recent Developments – Lord Mackay Of Clashfern

1

(1993) 20 JMCL

Marketing Practices Legislation And The Concept Of Unfairness Towards Consumers – David Harland

21

(1993) 20 JMCL

The Future Of The Shariah And The Shariah Courts In Malaysia – Ahmad Ibrahim

41

(1993) 20 JMCL

The Laws Of Armed Conflict And United Nations Forces: Regulating Military Action For Peace – H Mccoubrey

59

(1993) 20 JMCL

The Universities (Discipline Of Students) Rules: An Administrative Law Perspective – Gan Ching Chuan

75

(1993) 20 JMCL

Prinsip Norwich Pharmacal Dan Perkembangannya – P Balan & Talat Mahmood Abdul Rashid

105

(1993) 20 JMCL

Preventive Detention And Constitutional Safeguards In Selected Third World Countries – Abu Bakar Munir & Siti Hajar Mohd Yassin

127

(1993) 20 JMCL

Banking Secrecy In Malaysia – Cheong May Fong

157

(1993) 20 JMCL

Paragraph 3, Part Ii Of The Vienna Declaration And Programme Of Action 1993: A Reflection Of The Approach Of The Universalist Or The Cultural Relativist? – Nurhalida Mohamed Khalil

183

(1993) 20 JMCL

Section 68a, Land Acquisition Act 1960: A Stumbling Block To Judicial Review? – Gan Ching Chuan

203

(1993) 20 JMCL

Akta Keselamatan Sosial Pekerja 1960, Kesannya Selepas Pindaan 1992 – Siti Zaharah Jamaluddin

215

(1993) 20 JMCL

Distinction Between A Boundary Dispute And A Territorial Dispute – An International Law Perspective – Surya P Sharma

223

(1993) 20 JMCL

Index To Legislation

233

(1992) 19 JMCL

Commercial Disputes Resolution In The 90’s – The Rt. Hon. Lord Donaldson Of Lymington

1

(1992) 19 JMCL

The Porous Veil – A Study On The Influence Of Eec And Us Competition Law On Australian Trade Practices Law – Eugene Khoo

17

(1992) 19 JMCL

Relevance Of The “Contiguity” Doctrine To International Territorial Disputes, Including The Spratly Islands Dispute – Surya P Sharma

81

(1992) 19 JMCL

Keadilan Kontrak: Perspektif Bandingan Undang-Undang Kontrak Indonesia Dan Malaysia – Shaik Mohd Noor Alam

99

(1992) 19 JMCL

The Ultra Vires Doctrine In Administrative Law: A Malaysian Perspective – Gan Ching Chuan

125

(1992) 19 JMCL

Pseudo-Rules For Pseudo-Directors: The Problem Of Rules And Standards In Yap Sing Hock V Public Prosecutor – Steven A Hirsch

161

(1992) 19 JMCL

Ketidakmampuan Suami Merogol Isteri – Kesan Pengecualian Kepada Seksyen 375 Kanun Kesiksaan – Shamsuddin Suhor

193

(1992) 19 JMCL

Oceans Apart: The Cocos Islanders’ View Of Australian Family Law – Jamila Hussain

203

(1992) 19 JMCL

Mensabitkan Jenayah Zina: Suatu Kemustahilan? – Pegawai Pendakwa Muis Lwn Hj Adib Datuk Said – Md Khalil Ruslan

213

(1992) 19 JMCL

Incorporation Of Architectural Firms And The Right To Remuneration – Pawancheek B Marican

221

(1992) 19 JMCL

Deduction Of Living Expenses From Damages For Loss Of Future Earnings – P Balan

229

(1992) 19 JMCL

Humanitarian Intervention: An Inquiry Into Law And Morality By Fernando R Teson – Myint Zan

237

(1992) 19 JMCL

Index To Legislation

259

(1991) 18 JMCL

Co-Existence Of The Old And New Models Of The World Legal Order Of Territoriality – Where Does The Primacy Lie? – Surya P. Sharma

1

(1991) 18 JMCL

An Asean Region Standard Form Of Construction Contract: The Way Ahead – Vincent Powell-Smith

23

(1991) 18 JMCL

The Hire-Purchase (Amendment) Act 1992 – P. Balan & Nik Ramlah Mahmood

37

(1991) 18 JMCL

Fuller’s Morality Of Law Revisited – Hari Chand

71

(1991) 18 JMCL

The Doctrine Of Illegality Under Section 24 Of The Malaysian Contracts Act, 1950 – Laying A Spirit To Rest – Sharifah Suhana

89

(1991) 18 JMCL

Privative Clauses: Post-Fire Bricks Development And Trend – Gan Ching Chuan

109

(1991) 18 JMCL

The Aftermath Of Susie Teoh – Are Parental Rights Supreme? – Yong Chiu Mei

129

(1991) 18 JMCL

The Concept Of Variations In The Construction Industry – Grace Xavier

147

(1991) 18 JMCL

Juvenile Sentencing: Re A Juvenile – Mimi Kamariah

165

(1991) 18 JMCL

Similar Facts In The Supreme Court – Pushpa Nair

171

(1991) 18 JMCL

Shahamin Faizul Kung Bin Abdullah Lwn Asma Bte Haji Junus: Suatu Kritikan – Nor Aini Abdullah

177

(1991) 18 JMCL

Wong Fook & Anor V Abdul Shukur Bin Abdul Halim (Wong Piang Loy, Third Party) – A Seatbelt Prejudice – Norchaya Hj. Talib

185

(1991) 18 JMCL

The Amanah Rakyat Negeri Sabah Enactment 1990 – Mary George

191

(1991) 18 JMCL

Criminal Law In Singapore And Malaysia: Text And Materials

215

(1991) 18 JMCL

Michigan Journal Of International Law, Vol. 10, Nos. 1-3

221

(1991) 18 JMCL

Index To Legislation

229

(1990) 17 JMCL

The Insanity Defence In Canada, Malaysia And Singapore: A Tale Of Two Codes – Gerry Ferguson

1

(1990) 17 JMCL

Diminished Responsibility Under Singapore Law (An Evaluation) – Molly Cheang

29

(1990) 17 JMCL

The Legal Protection Of Industrial Designs In Malaysia – Khaw Lake Tee

55

(1990) 17 JMCL

The Law Relating To Compulsory Third Party Motor Insurance In Malaysia – Nik Ramlah Mahmood

79

(1990) 17 JMCL

Self-Determination And Current Territorial Disputes – Law And Policy – Surya P. Sharma

109

(1990) 17 JMCL

Penal Code (Amendment) Act 1989 – Mimi Kamariah

133

(1990) 17 JMCL

Syed Abu Tahir A/L Mohamed Esmail V. P.P.: Some Reflections – Mary George

145

(1990) 17 JMCL

Torrens System In Sabah? – R.R. Sethu

159

(1990) 17 JMCL

Loss Of Future Earnings, Loss Of Earning Capacity And The Civil Law (Amendment) Act, 1984 – P. Balan

169

(1990) 17 JMCL

Administrative Law Of Malaysia And Singapore (Second Edition) By Professor M.P. Jain – Gan Ching Chuan

181

(1990) 17 JMCL

Index To Legislation

189

(1989) 16 JMCL

Judicial Legislation: Retreat From Anns. – The Rt. Hon. Lord Oliver Of Aylmerton, P.C.

1

(1989) 16 JMCL

Are Forces Invited From A Foreign State Liable To The Laws Of The Host State? – Lakshman Marasinghe

29

(1989) 16 JMCL

Statutory Reform Of Administrative Law: The Canadian Experience – Victor Mackinnon

61

(1989) 16 JMCL

Criminal Procedure And The Banking And Financial Institutions Act 1989 – Mimi Kamariah

79

(1989) 16 JMCL

Section 69(1) Of The Employment Act, 1955 – Judicial Misunderstanding Of Legislative Intent – Sharifah Suhana

99

(1989) 16 JMCL

Law, Force And Obedience – Hari Chand

113

(1989) 16 JMCL

Takaful: Sistem Insuran Bersama Secara Islam Di Malaysia – Amalan Dan Undang-Undang – Nik Ramlah

125

(1989) 16 JMCL

Ex-Parte Orders: Extent Of Duty Of Disclosure & Consequences Of The Breach – R.R. Sethu

141

(1989) 16 JMCL

Recent Amendments To The Housing Developers (Control & Licensing) Act, 1966 And The New Housing Developers (Control & Licensing) Regulations, 1989 – Teo Keang Sood

159

(1989) 16 JMCL

Injunksi Mareva: Rahmat Atau Mudharat – Raja Letchumi Ramarajoo Lwn. The Hong Kong & Shanghai Banking Corporation – Talat Mahmood Bin Abdul Rashid

173

(1989) 16 JMCL

Damages For Personal Injuries & The Civil Law (Amendment) Act, 1984 – P. Balan

181

(1989) 16 JMCL

Islamic Jurisprudence – An International Perspective By Professor C.G. Weeramantry – S. Jaffer Hussain

193

(1989) 16 JMCL

The Centenary Of The Torrens System In Malaysia Ed. By Tan Sri Datuk Professor Ahmad Ibrahim & Judith Sihombing – Teo Keang Sood

199

(1989) 16 JMCL

Index To Legislation

209

(1988) 15 JMCL

The Underlying Concern Of Section 181 Of The Companies Act, 1965 – David Wishart

1

(1988) 15 JMCL

Freedom And Sanctity Of Contract: Common Law And Syariah – Some Reflections – S. Jaffer Hussein

43

(1988) 15 JMCL

Equity In Land Law – Teo Keang Sood

57

(1988) 15 JMCL

Private Defence In Singapore And Malaysia – Molly Cheang

87

(1988) 15 JMCL

Due Process Dalam Disiplin Pelajar – Rafiah Salim

111

(1988) 15 JMCL

Amendments To The Dangerous Drugs Act, 1952 – Mimi Kamariah

131

(1988) 15 JMCL

Insurable Interest In Life: Section 40 Of The Insurance Act, 1963 – Nik Ramlah

159

(1988) 15 JMCL

“Legitimate Expectation” – A Sound Foundation In Malaysia – J.P. Bethelsen V. Director-General Of Immigration, Malaysia & Ors – Hari Chand

169

(1988) 15 JMCL

Stretching The Boundaries Of Equity – Mahadevan & Anor V. Manilal & Sons (M) Sdn. Bhd. – Sharifah Suhana

179

(1988) 15 JMCL

Ketakupayaan, Had Masa Tindakan Dan Akta Perlindungan Pihak Berkuasa Awam, 1948 – P. Balan

189

(1988) 15 JMCL

Malaysian Taxation By Chin Yoong Kheong – Teo Keang Sood

205

(1988) 15 JMCL

Evidence By Chin Tet Yung – Teow Leong Wah

207

(1988) 15 JMCL

Index To Legislation

211

(1987) 14 JMCL

Learning The Law: Trusts In Business And Commerce – Donovan W.M. Waters

1

(1987) 14 JMCL

“Colour Of Office”: Restitutionary Redress Against Public Authority – W.R. Cornish

41

(1987) 14 JMCL

Gifts Made During Death Illness Under Islamic Law – Ahmad Ibrahim

59

(1987) 14 JMCL

Termination Of Employment Upon Change In Ownership Of Business – Sharifah Suhana

95

(1987) 14 JMCL

Sources And Literature Of Malaysian Law – Shaikha Zakaria

109

(1987) 14 JMCL

Permulaan Tindakan Mahkamah Di Malaysia Oleh Wasi Dan Pentadbir Pusaka Dan Terhadap Mereka – P. Balan

157

(1987) 14 JMCL

The Gillick Case: Abetment, Deterrence And Public Policy – G.L. Peiris

187

(1987) 14 JMCL

Contract And Equity V. Torrens System – R.R. Sethu

203

(1987) 14 JMCL

Federal Acts

213

(1987) 14 JMCL

Federal Amendment Acts

213

(1987) 14 JMCL

State Enactments

217

(1986) 13 JMCL

The Right To Know – Hrh Sultan Azlan Shah

1

(1986) 13 JMCL

Law And The Poor: Some Recent Developments In India – M.P. Jain

23

(1986) 13 JMCL

International Copyright Protection: The State Of The Malaysian Law, In Perspective – Seth Reiss

105

(1986) 13 JMCL

Petroleum Development In Malaysia: The Fiscal Regime – A. Krishnan

133

(1986) 13 JMCL

Drug Prevention And Rehabilitation In The Context Of Local Law – Mimi Kamariah

179

(1986) 13 JMCL

Sim Kie Chon V. Superintendent Of Pudu Prison & Ors – The Royal Prerogative Of Mercy? – Peter Crook

195

(1986) 13 JMCL

Squatters And The Law – Teo Keang Sood

207

(1986) 13 JMCL

Claims In Respect Of Part Of Land – Whether Capable Of Being Protected By Caveats – Khaw Lake Tee

219

(1986) 13 JMCL

Service On Registered Companies – Some Recent Developments In Malaysia – P. Balan

237

(1986) 13 JMCL

Sistem Undang-Undang Di Malaysia Oleh Ahmad Ibrahim And Ahilemah Joned – Wan Arfah Hamzah

245

(1986) 13 JMCL

Index To Legislation

249

(1985) 12 JMCL

Some Observations On The Privy Council – Sir Garfield Barwick

1

(1985) 12 JMCL

Amalan Triti Malaysia – Wan Arfah Hamzah

17

(1985) 12 JMCL

Towards An Islamic Law For Muslims In Malaysia – Ahmad Ibrahim

37

(1985) 12 JMCL

Release Of Sureties – R.R. Sethu

53

(1985) 12 JMCL

The Child In Malaysia – A Review Of Some Of The Laws Determining Status – Mehrun Siraj

89

(1985) 12 JMCL

The Legislative Framework For The Development Of Petroleum In Malaysia: An Overview – A. Krishnan

109

(1985) 12 JMCL

The General Deductibility Rule For Business Expense: A Malaysian And American Comparison – Teo Keang Sood

135

(1985) 12 JMCL

The Recognition And The Enforcement Of Foreign Judgments – L. Marasinghe

197

(1985) 12 JMCL

Affin Credit (Malaysia) Sdn. Bhd. V. Yap Yuen Fei: The Denouement Of A Hire-Purchase Mystery? – P. Balan

225

(1985) 12 JMCL

Set Kon Kim V. Officer In Charge, Cheras Police Station: Reflections On The Malaysian Law Of Extradition – Legislation And Judicial Decision – Wan Arfah Hamzah

245

(1985) 12 JMCL

The Trials And Tribulations Of Aliakmon: Leigh And Sillivan V. Aliakmon Shipping Co. Ltd. – Marasinghe & Jaginder Singh

231

(1985) 12 JMCL

Federal Acts

251

(1985) 12 JMCL

Federal Acts Revised

253

(1985) 12 JMCL

Federal Amendment Acts

253

(1985) 12 JMCL

State Enactments

257

(1984) 11 JMCL

Supremacy Of Law In Malaysia – Hrh Sultan Azlan Shah

1

(1984) 11 JMCL

Breeding The Best And The Brightest – A Legal Viewpoint – Lee Mei Pheng

11

(1984) 11 JMCL

Equitable Relief Against Forfeiture – Visu Sinnadurai

25

(1984) 11 JMCL

High Tempers In High Places – R.H. Hickling

51

(1984) 11 JMCL

Public Authorities And Their Procedures In Malaysia: 1977-1981 – M.P. Jain

61

(1984) 11 JMCL

The Securities Industry Act 1983 – Khaw Lake Tee

93

(1984) 11 JMCL

The Effect Of Language On Eye-Witness Testimony – Diana Tan

113

(1984) 11 JMCL

Religious Beliefs And Humanitarian Law With Special Reference To Islam – Ahmad Ibrahim

125

(1984) 11 JMCL

The Constitution And The Federal Idea In Peninsula Malaysia – Shafruddin Hashim

139

(1984) 11 JMCL

Akta Pembahagian 1958 – P. Balan & Rafiah Salim

179

(1984) 11 JMCL

Copyright, Censorship And Ex Turpi Causa – R.R. Sethu

119

(1984) 11 JMCL

Malaysia: Constitution (Amendment) Act 1983 And Constitution (Amendment) Act 1984 – R.H. Hickling

213

(1984) 11 JMCL

Statement Of Recommended Holdings Of Malaysian Legal Materials – Shaikha Zakaria

219

(1984) 11 JMCL

Summary Administration Of Small Estates – P. Balan

231

(1984) 11 JMCL

Federal Acts

237

(1984) 11 JMCL

Federal Acts Revised

237

(1984) 11 JMCL

Federal Amendment Acts

239

(1984) 11 JMCL

State Enactments

241

(1983) 10 JMCL

Administrative Law In The Common Law Countries: Recent Developments And Future Trends – M.P. Jain

1